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[2018] ZAGPJHC 502
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S v Mbatha (170/2018) [2018] ZAGPJHC 502 (13 August 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 170/2018
In
the matter between:
THE
STATE
And
MHLONGO
MBATHA,
SAMUEL
VUSI JAMES
JUDGMENT
RATSHIBVUMO
AJ:
1.
Introduction:
[1]
The accused in this case is Mhlongo-Mbatha Samuel Vusi James, a male
person who was initially charged with twelve (12) counts
and after
withdrawal of certain charges he remains facing six (6) counts.
[2]
Count 1
.
Housebreaking with the intent to steal and theft
.
The
state alleges that on or about 18 June 2006 and at or near […]
V Road, Krugersdorp in the district of Mogale City, the
accused and
one Anthony Almando Francisco, did unlawfully and intentionally and
with the intent to steal, break and enter the house
of Hendrik Van
Kaam, a seventy eight (78) years old male and Niesje Van Kaam, a
seventy two (72) years old female by removing the
louvres thereof
with intent to steal and did unlawfully steal a TV, a sowing machine,
two (2) guitars, CD player, DVD player, clothing
and two (2) carry
bags, the property of or property in the lawful possession of the
persons mentioned above.
[3]
Count 2. Robbery with aggravating circumstances.
The
state alleges that on or about 16 July 2006 and at or near the
address mentioned in count 1 in the indictment, the accused and
one
Anthony Almando Fransisco did unlawfully and intentionally assault
Hendrik Van Kaam, a seventy eight (78) years old male and
Niesje Van
Kaam, a seventy two (72) years old female, and did then and there and
with force take from the persons mentioned above:
a Telefunken
radio/CD/Cassette boombox; Fuji 35mm Camera; Magralite 3 “D”
Flashlight; Nokia 3410 cellphone; Nokia 6210
cellphone; a brown table
cloth; James Avery large ‘dove silver necklace; ladies gold
ring with rubies; 18 ct ladies 3mm wedding
ring; two (2) ladies
watches; Swiss Cuckoo clock silver necklace; thick 3mm silver
necklace, red Agate /Pietersen/Pearl necklace;
18ct ladies antique
ring with three (3) stones; gents watch, gents navy fleece; gents 9ct
wedding ring; grey gents leather jacket,
a pair of black men’s
shoes, a pair of brown men’s shoes, Poineer DVD player; Samsung
tape deck, VCR multimedia device,
four hundred rand (R400) in cash
and wallet; brown men’s suede wallet, and a brown sued ladies
jacket, the property of the
persons mentioned above and or property
in their lawful possession and did thereby rob them with aggravating
circumstances as defined
in section
1 Act 51
of 1977 being present,
to wit, the inflicting of grievous bodily harm.
[4]
Count 3. Attempted murder.
The
state alleges that upon or about the date and at or near the place
mentioned in count 2, the accused and one Anthony Armando
Fransisco
did unlawfully and intentionally attempt to kill Niesje Van Kaam, a
seventy two (72) years old female.
[5]
Count 4. Murder
.
The
state alleges that upon or about the date and at or near the place
mentioned in count 2, the accused and one Anthony Armando
Francisco
did unlawfully and intentionally kill Hendrik Van Kaam, a seventy
eight (78) years old male.
[6]
Count 5. Robbery with aggravating circumstances.
The
state alleges that on or about 18 August 2006 and at or near […]
W. Street, Kenmare, Krugersdorp, in the district of
Mogale City, the
accused and two other men whose identity is unknown to the state at
this stage did unlawfully and intentionally
assault Hendrik Jacobus
Buitendag, a seventy seven (77) years old male and or his wife and
did then and there with force take from
the persons mentioned above
cash and other property of which the exact details are unknown to the
state at this stage to the value
of approximately thirty thousand
rand (R30 000); the property of the persons mentioned above and
or property in their lawful
possession and did thereby rob them of
same with aggravating circumstances as defined in section 1 of Act 51
of 1977, being present,
to wit, wielding firearms and or threatening
to inflict grievous bodily harm.
[7]
Count 12. Housebreaking with the intent to steal and theft.
The
state alleges that upon or about 11 June 2017 at or near […] P
Street, Monument Krugersdorp in the district of Mogale
City, the
accused did unlawfully and intentionally and with the intent to
steal, break and enter the house of Shaun Leon Van Oudvorst
and
unlawfully steal a welding machine and tools to the value of six
thousand rand (R6000), the property of and or property
in the
lawful possession of Shaun Leon Van Oudvorst.
[8]
Defence Counsel is Mr Lidovho, Counsel for the State is Mr Van Wyk
and language service is rendered.
Plea:
[9]
The accused understood the charges against him as well as an
explanation on the prescribed minimum sentence applicable on
conviction
for robbery with aggravating circumstances and for murder
respectively. The accused pleaded not guilty to all the counts and
elected
not to make any statement in terms of the provisions of
section 115 of Act 51 of 1977, (herein after called “the Act”).
Admissions:
[10]
The accused however made several admissions which were with his
consent recorded as formal admissions in terms of section 220
of the
Act. Such admissions will be mentioned later in the summary of
evidence in respect of each count.
[11]
Documents marked exhibit “B”; “C”; “D”;
“E”; “F”; “G”;
“H”;
“J” and “V” respectively, were accepted as
the correct reflection of the facts recorded
thereon. Exhibit “B”
is the finger print report on count 1 which shows finger print
identical to that of Anthony Armando
Francisco.
Exhibit “C”
is the medical report in respect of injured Niesje Van Kaam.
Exhibit “D”
is the post mortem report in respect of the late Hendrik Van Kaam.
Exhibit “E”
is the crime scene album in respect of counts 2 and 4.
Exhibit “F”
is a finger print report showing finger print identical to that of
Anthony Armando Francisco.
Exhibit “G”
is a fingerprint report of a finger print identical to that of the
accused before court.
Exhibits “H”
and “J” are finger print reports showing finger print
identical to that of the accused in respect
of count 5.
Exhibit “V”
is still prints of surveillance video in respect of count 12.
Opening
Address by Prosecution:
[12]
In addressing the court in terms of Section 150(1) of the Act the
state submitted that witnesses will testify, documentary
evidence
will be tendered and that the principles of “similar fact
evidence” will be invoked to prove identity of the
perpetrator
in respect of count 1.
[13]
To prove its case the state led oral evidence of 10 witnesses and in
addition to the documents mentioned in paragraph [11]
above submitted
the following documents/items:
Exhibit “G1”
- black foil used by inspector Pillay to lift the fingerprints in
respect of counts 2 to 4
Exhibit “G2”
- set of fingerprints per SAPS 192 in respect of counts 2 to 4
Exhibit “G3”
- court chart in respect of counts 2 to 4
Exhibit “G4”
- fingerprints taken before court in respect of counts 2 to 4
Exhibit “J1”
- set of fingerprints per SAPS 192 in respect of count 5
Exhibit “J2”
– Scotch tape in respect of count 5
Exhibit “J3”
– court chart in respect of count 5
Exhibit “1” –
USB for video footage in respect of count 12
[14]
At the close of the state case, an application for the discharge of
the accused in terms of section 174 of the Act on count
1 was
unsuccessful.
[15]
The defence led the evidence of the accused and handed a statement by
Rosemary Menezes marked exhibit “w”.
2.
Summary of Evidence:
2.1
Case for the Prosecution
Counts
1 - 4
[16]
Evidence on counts 1 to 4 respectively relates to incidents that
occurred at a house situated at […] V Avenue, Krugersdorp
that
belonged to Hendrik Van Kaam and Niesje Van Kaam.
[17]
On count 1. House breaking with the intent to steal and theft
:
Formal
admissions are to the effect that on or about 18 June 2006 a
housebreaking occurred in the mentioned house during which the
items
listed in count 1 in the indictment were stolen. On the same day,
Inspector Tony Astle, a fingerprint expert in the employ
of the South
African Police Service lifted fingerprints from the louvre panel
outside the dining room of the mentioned house.
On
the 18
th
July
2006, he compared fingerprints lifted on the 18
th
June 2006 with fingerprints of Almon Anthony Armando Francisco and
found them to be identical with his right middle fingerprint.
The
linked suspect is no more; he passed away during May 2012 whilst
being a trial-awaiting prisoner at the Krugersdorp prison.
[18]
Count 2. Robbery with aggravating circumstances
,
Count 3,
attempted
murder
,
Count 4 Murder
:
The
incidents in counts 2 to 4 occurred at the same house mentioned in
count 1 on or about 16 July 2006. Formal admissions are to
the effect
that on that date, Hendrik Van Kaam, aged 78 years and his wife aged
72 years were accosted and assaulted in their home
and robbed of
their items mentioned in count 2 in the indictment.
[19]
As a result of the assault, Niesje Van Kaam sustained a stab wound
and or fractured ribs. Medical report marked exhibit “C“,
shows multiple fracture of ribs and internal injuries in the chest.
During that attack Hendrik Van Kaam was killed and the cause
of his
death was found to be consistent with the application of pressure to
the neck as per post mortem examination report marked
exhibit “D”.
That the accused before court was never lawfully at or near the
premises mentioned in counts 1 and 2 prior
to and or on the dates
mentioned in counts 1 to 4 respectively.
[20]
On counts 2 to 4 evidence of a fingerprint expert, Captain Jagnathan
Krishna Pillay, a member of the South African Police Service
stationed at the Krugersdorp Local Criminal Record Centre is to the
effect that on the 17
th
of July 2006 he lifted finger prints from the louvre window panel
lying on the ground below the window from which it was removed
at […]
V. Road Monument. On the 28
th
July 2006, he compared the fingerprint lifted by him with those of
Almon Anthony Armando Francisco and found it to be identical
with his
right index finger.
[21]
On the same day, he also lifted fingerprint from a wooden clock, on
the top right side. The clock was found lying on the ground
in front
of main entrance at […] V. Road Monument. On 28 July 2006 he
compared the mentioned fingerprint with finger prints
of Mbatha Sam
Vusi and found it to be identical with his right thumb fingerprint.
Mbatha Sam Vusi is the accused before court.
He explained the
procedure followed in lifting fingerprints until at the stage of
comparison and identification. On comparing the
fingerprint lifted
from the scene of the crime with that of the accused before court, he
found nine (9) points of similarity.
[22]
He is of the opinion that fingerprint lifted at the mentioned address
belongs to no other person than the accused before court.
He ruled
out the possibility of fingerprint having been transplanted as
according to him the fingerprint at the property in issue
existed in
2006, long before the accused’s set of fingerprints was taken.
Under cross-examination he stated that when he
lifted the
fingerprints on both the window louvre panel and the wooden clock,
they were fresh as they reacted clearly to the powder
that was used.
On the ownership of the clock from which the fingerprint was lifted,
he stated that it belonged to the complainants.
[23]
Willem Esterhuizen testified to the effect that the late Hendrik Van
Kaam was his father in -law and Niesje Van Kaam his mother
in- law.
He more often frequented their property. During the period June to
July 2006, he was familiar with people working for
his parents in
-law. In explaining how the perpetrators gained access to the house
of his parents in- law, he stated that the perpetrators
removed the
louvre window into the dining room.
[24]
For the incident of the 16 July 2006, he stated that the perpetrators
removed the louvre window on the bedroom side and entered
the house.
He was familiar with the furniture in that house and there was a
wooden clock in the living area near the dining room.
After the
incident he visited his mother in -law who was hospitalised for
injuries sustained during the robbery. He also referred
the court to
exhibit “E” photo 29 which shows words written on the
wall, “VEND ESTA CASA”, Portuguese words
meaning “sell
this house”. He saw such words on the wall after the incident
of the 16 July 2006.
[25]
The clock that was found with fingerprint was at a different place
from where it used to be. His mother in law who was seventy
two (72)
years old during the incident is now eighty four (84) years old.
According to him, she is a frail old woman with difficulties
in
walking and hearing. The death of her husband at their property
troubled her and after discharged from the hospital, she had
to stay
with them for two (2) months. She could not attend her husband’s
funeral as she was still in the hospital. She refused
to go back to
the property until they cleaned it and removed old furniture. He did
not know of any person who before the incident
wanted to buy that
house.
[26]
Conrad Robertson, a member of the South African Police Service is an
investigating officer in this case. He testified to the
effect that
for counts 1, 2, 3, 4 and 5 respectively, sets of fingerprints were
lifted immediately after the incidents. Such fingerprints
were kept
in the AFIS data base. On 6 July 2018 he handed a set of fingerprints
of the accused to Captain Pillay for the compilation
of court chart.
According to the information at his disposal, the accused is a
Mozambican national. The language popularity used
in Mozambique is
Tsonga and Portuguese. According to him, the accused does not have a
fixed address in South Africa.
[27]
Sgt Rasimati Andrea Maswangwanyi testified on counts 2 to 4 to the
effect that before Conrad Robertson took over, he was an
investigating officer in various cases involving the accused before
court. After the accused was arrested on the 11
th
of June
2017, he took a set of fingerprints from the accused and submitted it
to the Local Criminal Record Centre in Krugersdorp.
Fingerprints
lifted on the 18
th
June 2006 at […] V. Street,
Krugersdorp linked Antony Armando Francisco. During his
investigations he found that the said
Armando Francisco died in
prison in 2012 whilst awaiting trial for other cases. He
confirmed that Rosemary Menezes who arrested
the accused on the 11
th
June 2017 is a member of the Community Police Forum and that they are
allowed to effect civilian arrests. He disputed that the
accused was
assaulted after the arrest.
[28]
Count 5. Robbery with aggravating circumstances.
On
count 5, the accused made formal admissions to the effect that
robbery with aggravating circumstances occurred on the date and
at
the address mentioned in the indictment as a result of which items
mentioned in this count in the indictment were stolen. That
on the
19
th
of August
2006 a fingerprint expert, sergeant Otsesitswe Meshack Legae of the
South African Police Service, analysed fingerprints
lifted by
Constable Matebese Daniel Selepe. He admitted the correctness of
facts and results recorded by the mentioned officials
on the exhibits
“H” and “J” respectively.
[29]
Hendrik Buitendag an eighty nine (89) years old senior citizen
testified to the effect that, late in the evening of 18 August
2006,
at least 3 robbers accosted him and his wife inside their home when
they were sleeping. They robbed them of their items mentioned
in the
indictment. He further stated that the perpetrators gained entry by
removing glass panels from a louvre window. He confirmed
that on 19
th
August 2008, a member of the South African Police Service lifted
fingerprint from one of the glass panels that were removed from
the
louvre window. On whether he knew the accused before court, he stated
that the accused is unknown to him and had never been
lawfully on his
premises prior to or on the date of the robbery.
[30]
Sergeant Selepe confirmed that he had lifted a fingerprint from a
glass panel of the louvre at the house of Hendrik Buitendag
on 19
August 2006.
[31]
Warrant Officer Legae testified to the effect that he analysed the
print lifted by Sergeant Selepe and on comparison found
the
fingerprint identical to that of the accused. He concluded without
doubt that the lifted fingerprint belongs to the accused
before
court.
[32]
Count 12. Housebreaking with the intent to steal and theft:
On
count 12, the accused’s formal admissions are to the effect
that a housebreaking occurred on the date and at the address
mentioned in the indictment, during which items mentioned in the
indictment were stolen.
[33]
He further admitted facts that he was arrested at or near […]
P. Street, Krugersdorp in the district of Mogale City
by members of
the local Community Police Forum (hereinafter called the CPF) and
members of the South African Police Service.
[34]
Rosemary Menezes who is a member of the CPF, testified to the effect
that during the early hours of the morning on 11 June
2017, she
received information from an armed response security company (EPR),
about a housebreaking that occurred at or near […]
P Street,
Krugersdorp. The CPF was requested to assist in tracing the suspects.
As she knew the area well and having done patrols
in that area prior
to that day, she and another CPF member went to park their vehicle
next to the wall of the hospital with lights
off.
[35]
Vehicles were parked next to an exit path of a veld that lies between
the hospital and […] P Street. She then saw a
person walking
casually emerging from the veld’s footpath at about 4h20. He
was 3 to 4 paces away from the vehicles when
they started the
vehicles and switched on lights. That person whom she identified as
the accused before court started running,
jumping walls of houses one
after the other. With the assistance of other CPF members and the
armed response, the place was cordoned
off and when the accused
emerged from one of the yards she arrested him.
[36]The
accused was wearing a dark blue jacket with various layers of shirts
underneath the jacket. The shirts varied from light
to yellow
colours. He had green/khaki pants on and was wearing black shoes. She
informed the accused that he was being arrested
for housebreaking at
[…] P. Street and for trespassing as he had jumped over
various walls of houses prior to arrest.
[37]
According to her estimation, it took about 20 minutes from the time
she received a report of housebreaking until the accused
emerged from
the veld. She further stated that the accused was alone at all times
and no other suspects were seen. The accused
had nothing in his
possession. It was her first time to see the accused. She handcuffed
the accused and waited for the police to
come. On arrival the police
took the accused to the scene of the crime but she did not accompany
them to the scene of the crime.
[38]
Under cross-examination she explained the role of the CPF in the
community and its powers. She further explained that the accused,
when he emerged from the veld, he was walking in a direction from […]
P Street. She disputed that the accused could have
been coming from a
tavern going to a taxi rank by indicating that there is no tavern or
taxi rank in that area.
[39]
Her sworn statement marked exhibit “W” was used under
cross-examination and she was questioned on the use of the
phrase “we
went to […] P Street”, if she did not go to the scene of
the incident. She responded by indicating
that she used the word “we”
referring to members of the CPF as a collective. She disputed that
the accused was assaulted
during the arrest.
[40]
When it was put to her that the accused was wearing a blue top,
which he was wearing under another top which he exhibited
in court,
and white and blue tekkies when arrested, she stated that it was
possible that he could have been wearing the same blue
top exhibited,
but disputed that he was wearing tekkies. On whether she was allowed
to arrest and handcuff a suspect, she stated
that the law allows them
to effect civilian arrest.
[41]
Shaun Oudvorst is the owner of the property at […] P Street,
he testified on the download of the surveillance footage
marked
exhibit “L”. The video footage shows three people
entering the property twice at between 2h11 and 2h19 on the
11 June
2017. He testified on the authenticity of the footage and explained
what could be seen from the visuals with particular
reference to the
clothing of the suspects and the direction to which they ran after
the alarm was activated. He further stated
that after observing the
images from the video footage he gave the security company
descriptions of the clothing that one of them
was wearing a dark
shade of clothing.
[42]
He referred the court to the second exit of the suspects on which he
identified a welding machine that was being carried away
by one of
the suspects. The suspects were seen climbing the wall to exit the
property and moved to the veld on the other side of
the property.
[43]
When the accused was brought to the property after the arrest he
noticed that he was wearing a navy blue wind-breaker, khaki
pants,
and layers of clothes under the wind-breaker with light and yellow
colours showing out. When he compared the video footage
with the
person brought by the police, he concluded that the accused before
court was one of the three suspects seen in the video
footage.
[44]
Under cross-examination he admitted that it is difficult to say that
the accused is one of the people seen in the video when
one looks at
images in the video footage. He disputed that photos of the accused
were taken in his presence.
[45]
Clarenda Viviers is the girlfriend of Van Oudvorst. Her explanation
of the incident was to a large extent similar to that of
Mr Oudvorst.
She stated that after seeing the accused and looking again at the
footage she realised that the suspect with the dark
shade clothing
had a light shirt protruding at waist level and at the cuffs. Based
on the clothing that the accused was wearing
she concluded that he is
one of the three people captured by the surveillance camera. She
disputed that the accused was assaulted
in her presence.
2.2
Defence Case
[46]
In his defence, the accused testified to the effect that the
Krugersdorp area is well known to him as he worked in that area
for a
white man called Fannie from 2004 to 2008. On the 11 June 2017 he was
still living around the Krugersdorp area. On that day
he accompanied
his friends to an open field to attend an event where artists were
performing. The event continued until early hours
of the next
morning. When the event attendees dispersed, he parted ways with his
friends and walked alone towards the taxi rank.
He was walking on a
tarred road when he came across people including the state witness
Menezes who questioned him on where he was
coming from and also
informing him that there was a robbery that took place in that area.
They instructed him to lie down, handcuffed
him and even assaulted
him.
[47]
While he was still at the place where he was arrested, a certain
white male came and took photos of him and left. He later
returned
saying that when he compared the photos taken and the images in the
video footage he found that he was involved in the
commission of the
offence. That white male insisted that the people should go to his
house to watch the video footage. He was taken
to the complainant’s
yard and shown where the incident happened. He was thereafter taken
to the police station. He disputed
that he came from the veld or that
he jumped over properties’ walls running away. According to
him, he was on his way to
his home at Emnandini.
[48]
On the fingerprints lifted in addresses mentioned in other counts, he
stated that although he worked in various houses in Krugersdorp,
he
was never employed in the addresses mentioned in the charges. He does
not know how his fingerprints landed in those addresses.
He disputed
that the video footage depicts him as one of the suspects, as on the
date of the incident he was wearing a blue top,
blue and black
coloured tekkies and a white cap.
[49]
On counts 2 to 4 at […] V Road on 16
th
July 2006, he disputed that he committed such offences. He claimed
his innocence when his Counsel referred him to the similarities
in
the modus operandi in respect of the commission of the various
offences with which he was charged. He disputed that he committed
robbery in respect of count 5 at […] W Street, Kenmare in
Krugersdorp. He told the court that he can speak Shangaan, Tshopi,
Nyembane and Portuguese languages but cannot write as he never
attended school. He further stated that he was never found in
possession
of any of the alleged stolen or robbed items listed in
respect of charges that he is facing.
[50]
Under cross examination the accused confirmed that the words carved
on the wall of the murder scene, “VEND EST CASA”,
are
Portuguese words meaning ‘sell this house’. He admitted
that he knew Anton Armando Francisco whose fingerprints
were also
found at the murder scene and the housebreaking scene in respect of
count 1. He explained that they both worked for one
Fannie for the
period 2004 to 2008.
[51]
At the close of the defence case, both the state and the defence
submitted heads of argument, with the state arguing for the
conviction of the accused on all counts and the defence arguing for
his acquittal on all counts. The thrust of their submissions
will be
addressed later in this judgement.
3.
Evaluation of Evidence
[52]
The accused made several formal admissions in this case, and
therefore, facts so formerly admitted become common cause between
the
parties.
The
issue for determination in this case, is the identification of the
perpetrator(s) of the offences under consideration.
[53]
The criminal standard of proof is proof beyond a reasonable doubt and
the courts have articulated its meaning in a number of
different
ways. In
S v Sithole
1999(1) SACR 585 (W)
Nugent J and Schwartzman J stated, “There is only one test in a
criminal case, and that is whether the evidence establishes
the guilt
of the accused beyond a reasonable doubt. The corollary is that the
accused is entitled to be acquitted if there is a
reasonable
possibility that an innocent explanation which he has proffered might
be true…”
[54]
Nugent J in
S v Van der Meyden
1999(1)
SACR 44 (W), 448
elaborated the above
mentioned view by stating: “These are not separate and
independent tests, but the expression of the
same test when viewed
from opposite perspectives. In order to convict, the evidence
must establish the guilt of the accused
beyond a reasonable doubt,
which will be so only if there is at the same time no reasonable
possibility that an innocent explanation
which has been put forward
may be true. The two are inseparable, each being the logical
corollary of the other. In which ever form
the test is expressed, it
must be satisfied upon consideration of all the evidence. A court
does not look at the evidence implicating
the accused in isolation in
order to determine whether there is proof beyond a reasonable doubt
and so too does it not
look at the exculpatory
evidence in isolation in order to determine whether it is reasonably
possible that it might be true.”
[55]
In this case, there is no direct evidence on the identification of
the perpetrators, in respect of all the charges. The state
is
entirely relying on circumstantial evidence that calls for
inferential reasoning of the court.
In
evaluating the evidence, the court is guided by the cardinal rules of
logic set out in
R v Blom
1939 AD 188
at 2002 – 3
by Watermeyer JA who said that two cardinal rules of logic which
could not be ignored when it comes to reasoning by inference are:
(1) The inference sought
to be drawn must be consistent with all the proved facts, if it is
not, then the inference cannot be drawn.
(2) The proved facts
should be such that they exclude every reasonable inference from them
save the one sought to be drawn. If they
do not exclude other
reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct. These
rules have been
adhered to and applied by the courts almost as if they were statutory
enactments.
[56]
In
Rex v De Villiers
1994 AD 493
, 508-9,
it
was pointed out that the court should not consider each circumstance
in isolation and then gives the accused the benefit of any
reasonable
doubt as to the inference to be drawn from each single circumstance.
In
Rex v Mthembu
1950 (1) SA 670
(A
)
it was stated that the approach can also be put differently: the
state must satisfy the court, not that each separate item of
evidence
is inconsistent with the innocence of the accused, but only that the
evidence taken as a whole is beyond reasonable doubt
inconsistent
with such innocence.
[57]
In view of the admitted facts and evidence tendered I find this to be
a case that rests entirely on circumstantial evidence
which falls
into three categories:
(i)
Circumstances that led to accused’s arrest
for count 12 on 11 June 2017;
(ii)
The presence of fingerprints at the crime scenes
in respect of counts 2 to 5; and
(iii)
Similar fact evidence on the identification of
the perpetrator on count 1.
[58]
Circumstances that led to the accused’s arrest for count 12:
In
this regard the state is relying on the oral evidence of three
witnesses and real evidence in the form of video footage. None
of the
state witnesses saw the accused committing an offence. Counsel for
the state submitted that the state witnesses were impressive
and had
no motive to falsely implicate the accused. He argued that the
accused was not a credible witness and that he raised a
false alibi.
Based on the facts that the accused was seen emerging from the veld
during the early hours of the morning and having
been identified
through his clothing as well as images in the video footage, he
requested the court to draw an inference that the
accused had entered
the yard at […] P Street and committed an offence as charged.
The defence counsel conceded that the
state witness’s version
was credible but on the video footage he submitted that the
identification by video footage is not
definitive.
[59]
In this regard I have taken into account that the accused was
arrested at 04h20 whereas the alarm at the complainant’s
property went off at 02h19; this makes it almost two hours before the
accused emerged from the veld. The accused had nothing in
his
possession. Under cross examination the complainant conceded that
from the video footage images, one would not be able to indicate
with
certainty that the accused was amongst the three people whose images
were observed.
[60]
The court had an opportunity to observe the downloaded video footage
being replayed in court as real evidence. One could see
images of
three (3) persons, one of whom had darkish top and others with
lighter clothes. It was not possible to see facial appearances
of
such persons.
[61]
The accused disputes that he entered the complainant’s property
that night. He stated that he was at a music festival
and was
arrested while on his way home during the early hours of the morning.
Even if the witnesses testified in a straight forward
and convincing
fashion, none of them is certain whether one of the images seen in
that video footage is that of the accused before
court. Although
the accused had difficulties in explaining certain inconsistencies in
his evidence, he raised a defence of
an alibi, explaining where he
was during the relevant time. Evidence that he was at the
complainant’s property, during the
relevant time lacks
certainty. There is no burden of proof on the accused to prove his
alibi. If there is a reasonable possibility
that the accused’s
alibi could be true, then the prosecution has failed to discharge its
burden of proof and the accused
must be given the benefit of the
doubt. –
S v Malefo
1998 (1) SACR 127
W at 158 a-e.
[62]
Real evidence in the form of video footage as it is, does not aid the
state’s case in as far as the identification of
the perpetrator
is concerned as it does not clearly show identifiable features of
human beings. Facts on which the witnesses suspect
the accused to
have been one of the three (3) images seen in the video footage do
not lead to an inference that excludes other
reasonable inferences.
In considering evidence in totality, it is doubtful that the accused
before court is one of the three people
whose images were seen in the
video footage.
[63]
The presence of finger prints at the crime scenes mentioned in
counts 2 to 5
in the indictment
:
For
counts 2 to 4, the fingerprint was lifted from the wooden clock found
lying on the floor in front of the main entrance. For
count 5 the
fingerprint was lifted from the louvre glass that was removed from
the window.
Evidence
that finger prints were found at the scene of the crime or on a
particular object is often of strong probative value in
linking the
accused with the commission of a crime.
[64]
Fingerprint identification in criminal proceedings must be done by an
expert witness. The duties placed upon the court when
assessing the
evidence of fingerprint experts, was set out in
S
v
Gumede & Another
1982 (4) SA 561
(T).
The
courts must, first be satisfied that the witness is competent to give
evidence, that he is properly trained and has sufficient
experience.
Secondly, it must be satisfied as to the origin of the sets of
fingerprints that are being compared, meaning the set
that was found
at the scene of the crime and the set of the accused. Thirdly, it
must be satisfied that the expert conducted a
proper enquiry in
comparing the two sets and that he is capable of referring to
sufficient points of similarity. In practice there
should be at least
seven (7) points of similarity before our courts will accept the
identity to be sufficient –
S V Nala
1965
(4) SA 360
(A).
[65]
In the case under consideration, the fingerprint investigators and
the fingerprint experts testified. These witnesses testified
in a
coherent, consistent and credible manner in explaining the process
followed in lifting finger prints until comparison was
done. They
demonstrated remarkable skills in doing their job of investigating
fingerprints. I am amply satisfied that they conducted
a proper
enquiry in comparing sets of fingerprints lifted from the crime
scenes and those of the accused before court. The accused
does not
deny that sets of fingerprints lifted at the crime scenes belong to
him. He however does not know how such prints landed
at the scenes.
He further explained with certainty that he has never worked or
lawfully found himself in the property from which
his fingerprints
were lifted prior to or on the dates of the incidents. For both the
incidents of 16 July 2006 and that of 18 August
2006 respectively,
the experts identified nine (9) points of similarity in each, thereby
exceeding the required seven (7) points
of similarity. Such points of
similarity are sufficient to prove beyond a reasonable doubt that the
prints were made by one and
the same person, in this case the accused
before court.
[66]
Mr Esterhuizen testified on the ownership of the wooden clock from
which fingerprints were lifted and the after effects of
the incident
on his mother in- law.
Mr
Buitendag testified on how he and his wife were attacked and their
belongings stolen. Evidence of both Mr Esterhuizen and Mr
Buitendag
is found to be satisfactory in all material aspects.
On
counts 2, 3, 4 and 5, I have no doubt that the accused before court
was involved in the commission of the offences as charged.
[67]
Similar fact
evidence on the identification of the
perpetrator on count 1.
The
general principle in respect of the admissibility of evidence is
provided for in terms of section 210 of the Act as follows:
“
No evidence as to
any fact, matter or thing shall be admissible which is irrelevant or
immaterial and which cannot conduce to prove
or disprove any point of
fact at issue in criminal proceedings.”
[68]
In as far as evidence of similar facts is concerned, the general
principle is that, evidence of similar fact is inadmissible
because
it is irrelevant – see generally
Zeffert
& Paizes
,
The
South African Law of Evidence, 2
nd
edition page 271
.
[69]
In
Nduna v State
2011 (1) SACR 115
(SCA),
it was stated that the ultimate test is and must always
be, the relevance of such similar fact evidence as the foundation for
its
admissibility against the accused person: the evidence will be
admissible if it is relevant to an issue in the case.
[70]
In this case, the court reiterated with approval the manner in which
the rule was set out in
Matthews v State
1960
(1) SA 752
(A) at 758
B-C.
In Matthews’ case the court (per Schreiner JA) stated the rule
succinctly when he said: “
Relevancy is
based upon a blend of logic and experience lying outside the law. The
law starts with this practical or common sense
relevancy and then
adds material to it or, more commonly, excludes material from it, the
result being what is legally relevant
and therefore admissible..,
Katz
case is authority for asking oneself whether
the questioned evidence is only, in common sense, relevant to the
propensity of the
appellants to commit crimes of violence, with the
impermissible deduction that they for the reason were more likely to
have committed
the crime charged, or whether there is any other
reason which, fairly considered, supports the relevance of the
evidence”-
R v Katz
1949 AD 71
[71]
From the above mentioned authorities it is clear that the test for
the admissibility of similar fact evidence remains the relevance
of
the evidence. Evidence of similar facts will be admissible when it
becomes legally relevant. It will be legally relevant when
there is
such a strong and significant link between the similar fact and a
fact in issue that because of the strong link, the similar
fact can
be used to prove a fact in issue.
[72]
The connection between similar fact and the fact in issue must be
such that a reasonable and proper inference can be made.
The
probative value must be great enough to make the investigation into a
collateral matter worthwhile –
Trupedo
1920
AD
58
, Shabalala
1986 (4) SA 734
(A).
[73]
The improbability of coincidence in similar facts has been
highlighted in the case of
Moti1998 (2) SACR
245 SCA,
where evidence showed that the
accused and another perpetrator had participated together in other
robberies with a
modus operandi
identical to their robbery
in casu
,
committed precisely during the same period and in precisely the same
area. The notion that these similarities are only incidental,
is too
improbable a chance to be true. The evidence of a common
modus
operandi
and of the accused’s and other
perpetrator’s direct involvement in similar cases of robbery
was relevant, not to sustain
an inference that the accused had
participated in the robbery under consideration, but as corroboration
of the identification by
two witnesses that it was the accused who
had killed the deceased. Therefore the similar fact evidence is
admissible to corroborate
doubtful evidence of identification.
[74]
Similar facts sought to be invoked in the case under consideration
are not related to the accused’s previous conduct,
but are in
connection with the offences committed within a certain period of
time and in respect of which the accused is facing
multiple counts.
In this case the court is requested to infer from the manner in which
offences in other counts were committed
to find if the accused could
have committed the offence on the count under consideration which is,
count 1.
[75]
Evidence on one count is ordinarily not admissible on another unless,
according to the principles applicable to similar fact
evidence, it
has sufficient probative value force to warrant its reception –
S
v
Gokool
1965 (3) SA 461
N at 475
E.
[76]
In his argument, Counsel for the State identified nine areas of
similarity:
(a) That in count 12, the
accused committed an offence with two other suspects.
(b) That in count 5 the
complainant Mr Buitendag mentioned that robbery was committed by
three (3) persons and the accused’s
fingerprint was found in
the crime scene.
(c) That in counts 2 to
4, offences were committed by more than one person, and that the
accused‘s and Armando Francisco’s
fingerprints were found
on the crime scene.
(d) That Armando
Francisco’s fingerprint was lifted from the same crime scene a
month earlier when the Van Kaam family fell
victim to a housebreaking
on 18 June 2018.
(e) That on both the
crime scenes mentioned in count 2 and 5 respectively, the louver
windows panels were removed, which was also
the case in respect of
count 1.
(f) The fact that
Francisco’s fingerprints were lifted at the housebreaking of
the Van Kaam home both in June 2006 as well
as the murder scene in
July 2006 at the same address proves return of the same
perpetrator(s) to the same-targeted premises. This
was exactly the
same
modus operandi
in respect of count 12, where within ten
minutes (10) minutes after leaving the premises with stolen items,
they returned. In count
12, the accused was also involved.
(g) The fact that the
accused knew Francisco and they worked together in Krugersdorp during
the period 2004 to 2008.
(h) That the timing of
the housebreaking at […] P Street on 11 June 2017 was also
when the residents were sleeping.
[77]
He submitted that in the light of the above mentioned similarity in
modus operandi,
the
only reasonable inference to be drawn is that the accused had
perpetrated the offence alleged in count 1 with Francisco. He
further
submitted that one person would not have managed to carry away the
items mentioned in count 1. He further referred to the
court’s
ruling when an application for discharge was refused at the close of
the state case, that the accused did not give
evidence to prevent the
prima facie status of the evidence establishing the identity of the
accused as a co-perpetrator in count
1, from becoming conclusive
proof thereof. Defence Counsel submitted that the accused did not
commit the offence in count 1.
[78]
In applying the established principles in the evaluation of evidence
of similar fact I should take the following
aspects
into consideration.
(a) Evaluating the degree
of similarity between the acts and decide whether the evidence is
sufficiently similar to be admitted.
(b) Identifying the issue
for determination in the particular case and the purpose for which
the evidence sought to be introduced
and other available evidence.
(c) Ensuring, where
evidence of similar fact is tendered to prove the identity of a
suspected offender, that such evidence will
only have sufficient
cogency to be admitted where it is highly distinctive or unique,
because otherwise the evidence will not be
useful to differentiate
the accused from other potential offenders.
(d) That in case where
the evidence shows a unique trademark or signature that is present in
the offence for which the accused is
being tried, the evidence will
normally be sufficiently probative to warrant admission.
(e) Where the prosecution
seeks to use evidence from one count of an indictment as similar fact
evidence on a separate count (such
as in this case), the court must
also consider whether such use could unfairly lead the trier of fact
to reject defences raised
by the accused in relation to other
charges.
(The
list of the mentioned aspects for consideration is not exhaustive.)
[79]
Now, being mindful of the established legal principles in this
regard, I find the following:
(a)
That similarities mentioned by counsel for the
state are relevant to the count in issue.
(b)
That there are striking similarities in the
modus
operandi
in the commission of offences in
counts 1, 2 and 5 in that:
·
The offences are committed by more than one
person.
·
Properties of senior citizens are targeted.
·
Offences are committed during the night when
people are asleep.
·
Entry in respect of all offences is gained
through removal of louver windows.
·
Victims of crime are threatened with grievous
bodily harm, and those who resist are assaulted and even killed.
·
Large quantity of items is taken away.
·
The accused and one Francisco linked through
fingerprints were co-workers, both Mozambican nationals who among
others speak Portuguese
language.
·
The offences in count 1, 2 and 5 were committed
during the period June, July and August 2006 when the accused and one
Francisco
were co-workers under the same employer.
·
All the offences were committed in the
Krugersdorp area only, an area in which the accused and one Francisco
resided and worked
during that period.
[80]
Taking together these similarities of facts, I find their degree of
similarity rendering the likelihood of coincidence improbable.
In
my view the evidence relating to
modus
operandi
on counts 1, 2 and 5 respectively,
supported by the fingerprints evidence, is relevant and admissible.
[81]
Although each offence has been established independently in this
case, the cumulative effect of evidence of similar conduct
on all
counts weighs heavily against the accused.
All
the mentioned factors lead me to conclude that the perpetrator who is
linked to the commission of offences in counts 2 and 5
respectively
committed the offence in count 1 as well. The only inference to be
drawn from the proved facts is that the accused
before court was
involved in the commission of house breaking with the intent to steal
and theft in count 1.
4.
Verdict:
[82]
Based on the mentioned findings, the accused is found:
Guilty on Count 1
:
Housebreaking with the intent to steal and theft.
Guilty on Count 2:
Robbery with aggravating circumstances.
Guilty on Count 3
:
Attempted murder.
Guilty on Count 4
:
Murder as contemplated in section 51(1) Act 105 of 1997.
Guilty on Count 5:
Robbery with aggravating circumstances.
Not Guilty on Count
12
: Housebreaking with the intent to steal
and theft.
Judgment
on merits handed down on the 10
th
August 2018
JUDGMENT ON SENTENCE
1.
Introduction
[83]
Mr/MBATHA-MHLONGO
You
have been convicted of one count of housebreaking with the intent to
steal and theft, two counts of robbery with aggravating
circumstances, one count of attempted murder and one count of murder.
The
court is about to sentence you now.
2.
General sentencing principles
[84]
In order to arrive at an appropriate sentence the court is required
to consider the broad judge-made guiding principles known
as the
TRIAD of Zinn as set out in
S V Zinn
1969 (2) SA 537
A
when
the AD held that in imposing a sentence “what has to be
considered is the triad consisting of the CRIME, the OFFENDER
and the
INTERESTS OF SOCIETY” (my emphasis). These factors must be
considered equally and one should not be heavily relied
upon over the
others-
S V Holder
1979 (2) SA 70
A
.
With
regard to the crime there is a constitutional requirement that the
punishment imposed, including when it is set by the statute,
must not
be disproportionate to the offence-
Dodo v S
2001(3) SA 381(CC)
at paragraph 37.
[85]
In as far as the offender is concerned, considering the personal
circumstances of the offender (also known as individualization)
requires that the sentence fits the offender.
[86]
In as far as the society is concerned; a sentence that is imposed
should serve the public interest. In
S v
Makwanyane
[1995] ZACC 3
;
1995 (2) SACR 1
(CC
) it was held
that it is not the community’s wishes but rather their
interests that serve as the overriding principle. The
interests of
the society are not best served by too harsh a sentence, but equally
so they are not properly served by one that is
too lenient. I
understand this to mean that the determination of an appropriate
sentence should be guided by the public interest
and not by public
poll. Public interest incorporates the traditional purpose of
punishment that is deterrence of criminals, prevention
of crime, the
possibility of rehabilitating the offender, protection and
retribution-
S v
Rabie
1975 (4) SA 855
A at 866 A-C
.
[87]
I am also mindful of the fact that punishment should fit the criminal
as well as the crime and be fair to society and be blended
with a
measure of mercy according to the circumstances. In other words
punishment should be tampered by humanity (Ubuntu) and compassion.
I
am not supposed therefore to sentence in order to take revenge or
destroy the offender-
S v
Kumalo
1973 (3) SA 697
(A) at
698
.
3.
Minimum sentence
[88]
In your case among the offences for which you are convicted there is
one count of murder and two counts of robbery with aggravating
circumstances. These are offences that attract minimum sentence as
prescribed in terms of the Criminal Law Amendment Act 105 of
1997
(hereinafter called the Act). Relevant to your case, an explanation
was given before you pleaded that if you are convicted
of murder as
contemplated in section 51(1) of the Act, the minimum sentence
prescribed would be imprisonment for life, for robbery
with
aggravating circumstances, a period not less than 15 years, for the
first offender, not less than 20 years for the second
offender and
not less than 25 years for the third or subsequent offender.
[89]
Mr Mbatha-Mhlongo, you should bear in mind that the minimum sentence
legislation was enacted in response to the public demand
for more
stringent punishment for convicted offenders and to restore
confidence in the ability of criminal justice system to protect
the
public against crime. It is aimed at curbing the increased crime
rate, the crime pandemic that engulfs our country, protecting
communities against criminals and to ensure that courts are able to
deal effectively in terms of sentencing for the serious crimes
that
are experienced in our country. As emphasised by the Supreme Court of
Appeal in the case of
Matyityi
2011 (1) SACR
40
(SCA);
that our constitutional order can
hardly survive if courts fail to properly patrol the boundaries of
their own power by showing
due deference to the legitimate domains of
power of other arms of state . Here parliament has spoken. It has
ordained minimum sentences
for certain specified offences. It is “no
longer business as usual”, so said Marais J
A
in Malgas 2001 (1
)
SACR
469 SCA
at paragraph [7]. Courts are obliged
to impose the prescribed minimum sentences unless there are truly
convincing reasons for departing
from them.
[90]
It has therefore become important for this court to balance all
factors relevant to the sentencing against the benchmark as
laid down
by the legislature in respect of this crime. The legislature has
however created a mechanism whereby a court may be freed
from the
obligation of a minimum sentence prescribed if there are substantial
and compelling circumstances which justify the imposition
of a lesser
sentence than the prescribed one-
section 51(3)(a) of the Act.
4.
Crime
[91]
In passing a sentence the court must take into account the moral and
ethical nature of the crime, and the gravity of the offence.
The
sentence therefore must be commensurate with the gravity or otherwise
of the crime, which is a necessary concomitant of punishment.
4
.1 Murder and Attempted murder
[92]
Murder and attempted murder are serious violent crimes, causing or
attempting to cause the death of a human being are extremely
serious. In terms of section 12 (1) (c) of the Constitution of
the Republic of South Africa, 1996, everyone has the right
to be free
from all forms of violence from any source and in terms of section 11
of the Constitution, everyone has the right to
life. Your conduct was
a violation of the victims’ constitutional rights against
violence and to life. In the Constitutional
court judgment of
Makwanyane
[1995] ZACC 3
; ,
1995 (3) SA 391
(CC)
the court described the rights to life and dignity as the most
important of all human rights, and the source of all other personal
rights in the Bill of rights. Mr Mbatha-Mhlongo, you should bear in
mind that life is the most precious gift a human being can
receive
and once it is taken away from him/her it can never be returned. The
dominant theme of a culture based on Ubuntu is that
the life of
another person is at least as valuable as one’s own life.
[93]
Taking into account the circumstances and the manner in which the
above mentioned crimes were committed you and your cohorts
attacked
the elderly couple in their home, killing the husband aged 78 years,
seriously injuring the wife aged 72 years and looted
a large quantity
of their valuable goods. This was not their first loss as the same
property was broken into in just a month prior
to this attack.
Medical report marked exhibit “C” shows that Niesje Van
Kaam sustained a stab wound and fractured
ribs. The post mortem
report marked exhibit “D” shows that the deceased died as
a result of application of pressure
to the neck. He died a painful
death indeed.
[94]
The manner in which these crimes were committed suggests that you do
not value the sanctity of life. In a serious crime of
this nature,
the court must in its imposition of sentence, promote respect for the
law and in so doing must reflect the seriousness
of the crime-
S v
Ngcongo and
another
1996 1 SACR 55
(A).
The court must
never create an impression through its sentences that human life in
the eyes of law is cheap-
S v
Mgwathi
1985 4 SA 22
(T).
4.2
Housebreaking and robbery:
[95]
Housebreaking and robbery are serious offences. They are not crimes
that are ordinarily committed on the spur of the moment,
they are
pre-planned to ensure that resistance from victims of robbery cases
are subdued and perpetrators are difficult to trace.
In
housebreakings, perpetrators target time when property owners are
absent or fast asleep and are difficult to trace. Robbery
is a
violent crime as force is used to subdue victims. Victims that resist
are assaulted, threatened with death, injured and even
killed for
their belongings.
[96]
In your case you and one Armando Fransisco targeted the property of
Mr and Mrs Van Kaam where you committed housebreaking in
June and
house robbery in July 2006. In August 2006 you and your friends
committed house robbery at the property of Mr and Mrs
Buitendag,
elderly people. You committed this offence at gun point. Being
pointed with firearms, this couple was traumatised by
the possibility
of death hovering in attendance. Mr Mbatha-Mhlongo you should bear in
mind that house robbery and housebreaking
are among the most
frightening and dangerous crimes to experience.
[97]
The commission of these offences is frightening because it violates
victims’ private space at the very place that people
think to
be their sanctuary. Home robberies fuel fear in communities because
they put people at risk of personal injuries and emotional
trauma in
their homes, where they should feel safest. The current unprecedented
wave of robberies and burglaries in this area imposes
a
responsibility on the courts to act fearlessly and in unambiguous
terms to discourage this conduct.
5.
Interests of society
[98]
The court fulfils an important function in applying the law in the
community. It has a duty to maintain law and order. It should
be
borne in mind that the court operates in a society and its decisions
have an impact on individuals in the ordinary circumstances
of daily
life. The role of the state in a violent society is rather to
demonstrate that we are serious about the human rights the
Constitution guarantees for everyone.
[99]
The seriousness of these crimes is seen from the outlook of society,
the indignation with which this crime is held in the eyes
of the
society when people are attacked in their homes, killed and injured
for their hard-earned belongings and when their homes
are burgled and
valuable goods are stolen. Courts are expected to be shaped by
the spirit of their times and be responsive
to the outlook of the
community to which they belong. To allow perpetrators of these crimes
to create an environment of terror
and insecurity in the minds
innocent citizens is totally against the interests of society.
[100]
It is so, that, society cries for protection against all types of
criminals who should not be sent to prison today to return
tomorrow
showing bold daring faces as heroes of crime in a community that
shuns crimes. The society expects the convicted offenders
to do their
stint in prison for all serious crimes so that when they return they
must respect the right to life and dignity and
all other rights of
the citizens. The society needs criminals who have committed serious
and outrageous crimes such as the ones
under consideration to be
ideally removed from society for a long time. In that way courts
would be fulfilling their role in protecting
the society against
lawlessness.
6.
Evidence and address on sentence
[101]
In terms of section 274 CPA 51 of 1977, a court may before passing
sentence, receive such evidence as it thinks fit in order
to inform
itself as to the proper sentence to be passed. In this regard the
court considered evidence tendered by the accused,
as well as
submissions on mitigating and aggravating factors.
6.1
Evidence in mitigation of sentence
:
[102]
The accused testified to the effect that he is 38 years old married
with 3 minor children. Before arrest he was employed in
the
construction company earning R180.00 per day. He left school doing
Standard 2 due to lack of financial support, as after the
death of
his father nobody assisted him to further his studies. He experienced
hardship and had to look for work while still young.
He left home to
e-Swatini where he was employed to look after cattle. His mother was
employed as a domestic worker and she had
difficulties in raising him
together with his 3 siblings. His 2 siblings passed on and he is left
with his sister. Before arrest
he was staying at Emnandini in
Krugersdorp in a house belonging to an old man from Mozabique. He
acknowledged his previous conviction
of receiving stolen property
committed in 2003. While working he was supporting his wife and
children. He requested the court to
be lenient with him saying that
he is remorseful for his conduct. However under cross examination he
insisted that he did not commit
the offences for which he is
convicted. He was in custody for 14 months pending finalisation of
this case.
6.2
Address in mitigation of sentence
[103]
The Defence Counsel conceded that the accused is convicted of serious
offences involving elderly people as victims, one of
whom was killed.
He also conceded that from the accused’s personal circumstances
there are no factors that constitute substantial
and compelling
circumstances for court to deviate from imposing the prescribed
minimum sentence where applicable. He however requested
the court to
be lenient with the accused in view of the fact that he is from a
poor background and he grew up without a father
figure in the family.
He requested the court to order that sentences in all counts run
concurrently.
6.3
Address on aggravating factors
[104]
Counsel for the State requested the court to find the following
factors as aggravating:
·
The seriousness and the prevalence of these
offences in this Division and the need for the protection of society
against the accused
and other potential offenders;
·
The modus operandi of the accused that reveals
high degree of ruthlessness and cunningness;
·
The timing of the attacks on victims that are
done during the night in the cover of darkness;
·
Targeting defenceless vulnerable elderly people;
·
The accused’s previous brush with the law
which demonstrates that he is not a candidate for rehabilitation;
·
The daring conduct of the accused and his cohorts
who targeted the same property twice and on their last attack left
message on
the wall to read “sell this house”;
·
Devastating after -effects of the death of
Hendrik Van Kaam on the family members;
·
Serious injuries suffered by Niesje Van Kaam and
obviously psychological trauma on the untimely death of her husband;
·
Lack of remorse on the part of the accused when
he insists that he did not commit offence despite overwhelming
evidence against
him.
[105]
Based on the mentioned factors he submitted that the accused is a
danger to society and recommended sentence which will deter
him from
reoffending and that would convey a message to the ‘would be’
offenders of similar crimes that courts will
not tolerate such
conduct. According to him there are no substantial and compelling
circumstances for the court to deviate from
the prescribed minimum
sentences. He suggested life imprisonment for murder, 10 years
imprisonment for attempted murder, 15 years
imprisonment each of the
two counts of robbery with aggravating circumstances and 5 years
imprisonment for housebreaking with the
intent to steal and theft.
7.
Evaluation:
[106]
After considering the mentioned factors, I find the period of
pre-trial incarceration as the only factor that mitigates his
case.
The following are factors raised by the defence to be considered by
court as mitigating. I will give reasons why I do not
find them to be
mitigating the accused’s case.
(i)
Poor background and absence of father
figure in the family:
[107]
While the mentioned factors, prima facie, appear to be extenuating
circumstances. They do not apply to the accused in respect
of the
offences under consideration because he was gainfully employed by one
Fannie during that period. His poor background and
absence of a
father figure in the family did not have an influence in his conduct
in this case.
(ii)
Family responsibilities
:
[108]
Another factor brought to the attention of the court is the accused’s
family responsibilities, while this could a mitigating
factor in
other cases, it should however be borne in mind that in cases of
serious crime the personal circumstances of the offender
, by
themselves , will necessarily recede into the background. Once it
becomes clear that the crime is deserving of a substantial
period of
imprisonment the questions whether the accused is married or single,
whether he has two children or three, whether or
not he is employed,
are in themselves largely immaterial to what that period should be,
and those seem to me to be the kind of
‘flimsy’ grounds
that
Malgas
said should be avoided-
S v Vilakazi
2009 1 SACR
552
(SCA)
par 58
. The accused cannot be said to be a
primary-care giver to his minor 3 children as they are left with
their mothers.
(iii)
The “falling away” of previous
convictions:
[109]
Section
271A of the CPA 51of 1977
provides that certain
previous convictions “fall away” after a period of 10
years, provided the offender has not committed
a fairly serious crime
within that period. In this case the accused is convicted of serious
offences committed during 2006 which
period falls within 3 years
since his previous conviction in 2003. This clearly demonstrates that
the sentence imposed for his
previous conviction was not adequate to
deter him from re-offending within that period of 3 years. It is my
view that the mentioned
factor would not qualify to serve as a
mitigating factor in this case.
I
find the following factors aggravating the accused’s case:
(i)
Targeting defenceless older persons
(vulnerable victims).
[110]
In this case the accused and his cohorts targeted older persons;
Hendrik Van Kaam was 78 years old, Niesje Van Kaam was 72
years old
and Hendrik Buitendag was 77 years old when attacked. In terms of
section 30
(4) of the
Older Persons Act 13 of 2006
, if a court after
having convicted a person of any crime or offence , finds that the
convicted person has abused an older person
in the commission of such
crime or offence, such finding may be regarded as an aggravating
circumstance for sentencing purposes.
In
Ivanisevic
1967 (1) SA
572
(A),
the court confirmed that the fact that the victim was
defenceless old lady was aggravating. The accused and his friends
showed
no respect or mercy to the elderly people when they attacked
them and killed one of them. In the Congo there is a say that: “A
youth that does not cultivate respect for and friendship with the
elderly is like a tree without roots”. Just like children
and
women older persons are also vulnerable to all kinds of violence. It
is unfortunate that the National Crime statistics does
not show
breakdown of crime victims in terms of age groups, one would notice
that violence against older persons and eldercides
(killings of
elderly persons) are also on the increase in our country.
(ii)
Use of weapons in the commission of the
offences.
[111]
Persons committing assaults with knives or other dangerous weapons
must be punished more severely. By using weapons there
is always the
possibility of death hovering in attendance- Bernadus
1965 (3) SA 287
(A). In this case Hendrk Buitendag and his wife were pointed with
firearms until the accused and his friends disappeared with their
belongings. One hates to imagine as to what was going on in their
minds during that period when pointed with such lethal weapons.
(iii)
Lack of remorse.
[112]
Lack of remorse is also an aggravating factor.
Throughout
the trial the accused never demonstrated any sense of remorse. Even
after it has been found that he was linked to the
commission of
offences through his finger prints, he insists that he is innocent.
(iv)
The brutal manner in which the offences
were committed.
[113]
I had an opportunity to see photos in the photo album of the crime
scene at the property of Van Kaam family. It looks like
a war zone
with scattered goods, blood stains all over and the body of Hendrik
Van Kaam lying motionless. It is from this property
that they took
away a huge quantity of goods, none of which was recovered. The
accused and his cohorts showed a collous disregard
for the integrity
and privacy of the victim’s household when during the night
they broke into the property assaulted
victims, applying
pressure on the neck of one of them until he died and robbed them of
their valuable goods. I regard as aggravating
the fact that the
accused and his friends acted in a brutal and brazen fashion. It was
a gruesome murder and the accused together
with his cohorts were
determined to kill and had direct intention to kill Hendrik Van Kaam.
(v)
The impact of the crimes on the life of
Niesje Van Kaam
[104]
Besides sustaining serious injuries which landed her in the hospital
for a long time, she did not attend the funeral of her
husband and
she did not want go back to the house after discharged from the
hospital. She was traumatised by the incident and the
untimely death
of her husband.
(vi)
Prevalence of the crime
[105]
The prevalence of a particular kind of crime , or noticeable
increased occurrence of such a crime, may lead to an increased
severity in sentences-
S v Mohase
1998 (1) SACR 185(O)
at
193d-e
, (in this case it was taken into account that armed
robbery was assuming serious dimensions, which makes a severe
sentence important
as a message to other offenders). In the case
under consideration Counsel for the State submitted that offence
committed by the
accused are on the increase in this Province.
8.
Conclusion
[108]
In this case I find aggravating factors overshadowing mitigating
factors by far. From the accused’s personal circumstances,
I do
not find substantial and compelling circumstances justifying
deviation from imposing the prescribed minimum sentences on the
charges of murder and robbery with aggravating circumstances
respectively.
[109]Mr
Mbatha-Mhongo, I agree with Counsel for the State that you are a
danger to society. In this regard I am of the view that
to protect
the society and to deter potential offenders from committing similar
crimes you deserve to be separated from society
for your entire life.
On
the concurrent running of sentences ,
section 39(2)(a)(i)
of the
Correctional Services Act, 111 of 1998
provides that any sentence
imposed in addition to life imprisonment will automatically be served
concurrently with the life imprisonment.
8.1 Sentence:
[110] Mr
Mbatha-Mhlongo you are sentenced as follows:
Count1: Five (5) years
imprisonment
Count 2: Fifteen (15)
years imprisonment
Count 3: Seven (7)
years imprisonment
Count 4: Life
imprisonment
Count 5: Fifteen (15)
years imprisonment
8.2 Orders
[111] Mr Mbatha-Mhlongo
you have been convicted of violent crimes and
I do not find you
suitable to possess a firearm.
In terms of
section
103
(1) Act 60 of 2000, the accused is
DECLARED
UNFIT TO POSSESS A FIREARM
.
________________________________
RATSHIBVUMO
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA, GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearing
for the State:
Adv. Van Wyk
Defence
Counsel:
Adv. Lidovho
Instructed
by: Legal Aid South Africa
Date
of hearing: 06 August 2018
Date
of Judgment: 13 August 2018