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S v Mshubi and Another (Sentence) (SS69/2021) [2022] ZAGPJHC 83 (18 February 2022)

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Criminal Law
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Brief Summary

Criminal Law — Sentencing — Consideration of personal circumstances and community interests — Accused found guilty of murder, housebreaking, robbery, kidnapping, attempted extortion, and obstructing justice — Personal circumstances of both accused considered, including lack of education and previous convictions — Seriousness of offences highlighted by the brutal nature of the crimes and their impact on the victims' family — Court held that minimum sentences prescribed by legislation apply, with no substantial and compelling circumstances justifying a lesser sentence — Life imprisonment imposed for murder as a necessary deterrent to violent crime in the community.

Comprehensive Summary

Summary of Judgment


1. Introduction


The judgment concerned sentencing proceedings in the High Court of South Africa, South Gauteng High Court, Johannesburg, following the convictions of two accused persons. The matter proceeded under case number SS69/2021 and the court was required to determine appropriate sentences in respect of multiple serious offences, including murder, robbery involving a motor vehicle, kidnapping, and defeating or obstructing the administration of justice.


The parties were the State as prosecutor and Lucky Mshubi (Accused 1) together with Thabo Mambila (Accused 2) as the convicted persons. Accused 1 was convicted on six counts, while Accused 2 was convicted on five counts, the difference being that Accused 2 was not convicted of the attempted extortion count.


Procedurally, the court approached the matter as a dedicated sentence judgment following verdicts already returned. The sentencing enquiry required the court to weigh the accused persons’ personal circumstances, the seriousness of the offences, and the interests of the community, while also applying the statutory framework governing prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997.


The general subject matter of the dispute was therefore not liability, but the appropriate penal outcome, particularly whether either accused had shown substantial and compelling circumstances justifying a departure from the statutorily prescribed sentences, most notably life imprisonment for the murder count.


2. Material Facts


The court treated as central the fact that the offences occurred in the early morning while the deceased and her four children were asleep in their home. The deceased was kidnapped from her home by force, removed from the complex, and ultimately smothered to death. The deceased’s body was thereafter buried in the garden of Accused 1, which formed a key factual basis for both the murder count and the defeating-the-ends-of-justice count.


The offences for which sentence was imposed were connected to conduct occurring within a short time span. The court expressly regarded the offences of housebreaking, robbery, and kidnapping as inextricably linked, because they happened almost simultaneously or at most within a very short period of one another.


In aggravation of sentence, the court relied on the impact evidence of the deceased’s father and sister. The deceased’s father described how, on the morning of the incident, the deceased’s children appeared at his door crying and reported what had happened. The court accepted, as part of the factual matrix relevant to sentence, that some of the children were assaulted during the incident and that this was not disputed in cross-examination. The court further accepted that the family suffered substantial trauma requiring psychological support and that the family structure was disrupted, including changes to caregiving arrangements for the children.


In relation to motive and context, the court rejected the suggestion that the offences were committed primarily out of financial need. It relied on the low value of the stolen items (estimated by the State to be approximately R200) and on the fact that the stolen vehicle was never sold, concluding that the more probable inference was that the offences were committed as a revenge attack. The court also relied on evidence that ransom was demanded, coupled with the proposition that if money was not paid “someone would die,” and the fact that no ransom was received.


The court accepted that Accused 1 had pleaded guilty to certain counts (counts 2, 3, 4 and 6) and had provided an account of events, while Accused 2 pleaded not guilty and disputed his confession, resulting in a trial-within-a-trial. This procedural history was treated by the court as relevant to remorse and mitigation.


The court also treated as material that both accused had been in custody since April 2021 (Accused 1 since 22 April 2021 and Accused 2 since 27 April 2021) and considered this period as part of the overall proportionality assessment.


3. Legal Issues


The central legal questions were concerned with sentence rather than conviction. The primary issues were whether, given the convictions and the statutory minimum sentencing regime, there existed substantial and compelling circumstances justifying a departure from the prescribed sentences applicable to the murder count and the robbery count.


This required the court to determine, first, the applicable sentencing framework under the Criminal Law Amendment Act 105 of 1997, including whether the murder fell within Part I of Schedule 2 (thereby attracting life imprisonment under section 51(1)) and whether the robbery count attracted prescribed minimum terms under section 51(2) read with Part II of Schedule 2.


The dispute was largely an application of law to fact within a structured sentencing discretion. It included evaluative judgments about proportionality, the genuineness of remorse, the seriousness and moral blameworthiness of the conduct (including the significance of dolus eventualis as the form of intention on which the murder conviction rested), and the extent to which personal circumstances and pre-sentence detention affected the minimum-sentence outcome.


A further issue was the appropriate structuring of sentences to address the cumulative effect of multiple terms of imprisonment, including whether and to what extent concurrency should be ordered under the Criminal Procedure Act.


4. Court’s Reasoning


The court approached sentencing by reference to the conventional triad of considerations, namely the personal circumstances of the accused, the seriousness of the offences, and the interests of the community, while also bearing in mind the primary purposes of punishment identified as deterrence, retribution, reformation, and prevention.


A significant component of the reasoning concerned the statutory minimum sentence regime. The court identified that section 51(1) of Act 105 of 1997 prescribes life imprisonment for murder falling within Part I of Schedule 2, and that section 51(3) permits deviation only where substantial and compelling circumstances exist and are recorded. The court applied the approach articulated in S v Malgas 2001 (1) SACR 469 (SCA), namely that departure is justified where the prescribed sentence would be unjust because it would be disproportionate to the crime, the criminal, and the needs of society, so that an injustice would result.


In evaluating whether substantial and compelling circumstances were present for the murder count, the court considered the mitigating submissions advanced on behalf of Accused 1, including age, family circumstances, limited education, the guilty pleas on some counts, expressions of apology, the finding of dolus eventualis, and the claim that the murder was not planned. The court reasoned that age (37 and 31 respectively) was at best a limited favourable factor and not, without more, substantial and compelling. In this regard it relied on authority emphasising that “relative youthfulness” is generally not a persuasive basis for deviation, referencing Shubane v The State (073/14) [2014] ZASCA 148 (26 September 2014) and S v Matyityi 2011 (1) SACR 40 (SCA).


The court engaged directly with the submission that dolus eventualis should mitigate sentence. While acknowledging that counsel argued for a distinction between forms of intention, the court emphasised the factual circumstances it regarded as demonstrating extreme seriousness. It reasoned that the deceased was in the company of the accused for a considerable time, that Accused 1 observed she could not breathe when leaving the complex, yet the gagging continued with her hands tied behind her back. The court characterised the smothering and gagging as a form of “planned torture,” and concluded that there was nothing in the manner of the killing and subsequent burial that made it less heinous than other murders typically dealt with in the High Court. It therefore declined to treat the form of intent as establishing substantial and compelling circumstances on the facts before it.


The court’s assessment of remorse was distinctly evaluative. It distinguished between regret and genuine remorse, and relied on its own observations of the accused during victim-impact testimony, noting an absence of visible grief or empathy. It also drew adverse inferences regarding remorse from the accused’s conduct after the death (including consuming dagga and liquor) and, in Accused 2’s case, from disputing his confession and placing the court through a trial-within-a-trial, only later admitting the confession was properly taken. These considerations were treated as undermining mitigation based on contrition.


In relation to the robbery count, the court identified the operation of prescribed minimum sentences because the robbery involved the taking of a motor vehicle, bringing the matter within Part II of Schedule 2. The court considered Accused 1’s previous robbery conviction from 2009 as remaining a previous conviction for sentencing purposes, but it nonetheless treated Accused 1’s guilty plea on count 3 as a substantial and compelling circumstance justifying deviation from the higher minimum that would otherwise apply, imposing 17 years’ imprisonment for Accused 1 on that count. Accused 2, treated as a first offender on that count, received 15 years’ imprisonment.


The court also considered the effect of pre-sentence detention, applying Director of Public Prosecutions v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014) to the effect that pre-sentence incarceration is a factor relevant to proportionality, but not a standalone determinant; the ultimate enquiry remains whether the effective sentence is justified and proportionate in all the circumstances.


Finally, the court addressed cumulative punishment by structuring concurrency. Because housebreaking, robbery, and kidnapping were regarded as tightly connected, it ordered concurrency between the sentences for counts 2 and 4 and the robbery sentence on count 3 for each accused, relying on section 280(2) of the Criminal Procedure Act. The court separately emphasised the seriousness of defeating the ends of justice, reasoning that burial of the body increased decomposition and complicated determination of the cause of death, warranting a substantial custodial term.


5. Outcome and Relief


The court imposed the following sentences. On count 1 (murder), both Accused 1 and Accused 2 were sentenced to life imprisonment, the court having found no substantial and compelling circumstances warranting deviation from the prescribed statutory sentence.


On count 2 (housebreaking with intent to commit robbery and kidnapping), both accused were sentenced to 5 years’ imprisonment. On count 3 (robbery), Accused 1 was sentenced to 17 years’ imprisonment and Accused 2 to 15 years’ imprisonment. On count 4 (kidnapping), both accused were sentenced to 2 years’ imprisonment. On count 5 (attempted extortion), Accused 1 alone was sentenced to 3 years’ imprisonment. On count 6 (defeating or obstructing the administration of justice), both accused were sentenced to 6 years’ imprisonment.


In terms of section 280(2) of the Criminal Procedure Act 51 of 1977, the court ordered that, for each accused, the sentences on counts 2 and 4 would run concurrently with the sentence imposed on count 3. No further concurrency was ordered in relation to the remaining counts as recorded in the order.


In addition, in terms of section 103(1)(g) of the Firearms Control Act 60 of 2000, both accused were declared unfit to possess a firearm. The judgment did not record a costs order, consistent with the nature of criminal proceedings.


Cases Cited


S v Msimanga and Another 2005 (1) SACR 377 (A)


S v Malgas 2001 (1) SACR 469 (SCA)


Shubane v The State (073/14) [2014] ZASCA 148 (26 September 2014)


S v Matyityi 2011 (1) SACR 40 (SCA)


S v Swart 1999 (2) SACR 380 (C)


Director of Public Prosecutions v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014)


Legislation Cited


Criminal Law Amendment Act 105 of 1997, section 51(1), section 51(2), section 51(3), and Schedule 2 Part I and Part II


Criminal Procedure Act 51 of 1977, section 280(2)


Firearms Control Act 60 of 2000, section 103(1)(g)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the murder conviction fell within Part I of Schedule 2 to the Criminal Law Amendment Act 105 of 1997 and therefore attracted the prescribed sentence of life imprisonment. It further held that no substantial and compelling circumstances existed to justify a departure from that sentence, notwithstanding mitigation advanced relating to personal circumstances, guilty pleas on certain counts, the form of intention (dolus eventualis), or expressions of apology.


In relation to robbery involving a motor vehicle, the court held that the prescribed minimum sentence framework applied. It nonetheless found that Accused 1’s guilty plea constituted a substantial and compelling circumstance justifying a lesser sentence than the higher minimum contended for, imposing 17 years for Accused 1 and 15 years for Accused 2 on that count.


The court held that the offences of housebreaking, robbery, and kidnapping were closely connected and that concurrency should be ordered so that the sentences on counts 2 and 4 would run concurrently with the robbery sentences on count 3. It further held that defeating the ends of justice warranted a substantial custodial sentence due to the burial of the body and its effect on decomposition and proof of cause of death. Both accused were declared unfit to possess firearms.


LEGAL PRINCIPLES


The judgment applied the principle that where the Criminal Law Amendment Act 105 of 1997 prescribes minimum sentences, a sentencing court is obliged to impose those sentences unless substantial and compelling circumstances are present and properly recorded. The enquiry is framed by proportionality, namely whether the prescribed sentence would be unjust because it would be disproportionate to the offence, the offender, and the interests and needs of society, as articulated in S v Malgas 2001 (1) SACR 469 (SCA).


The judgment reinforced the principle that factors such as age (particularly where an offender is not a youthful offender) and generalized reliance on “relative youthfulness” do not, without more, ordinarily justify deviation from minimum sentences. In this connection, the judgment applied the caution expressed in S v Matyityi 2011 (1) SACR 40 (SCA) and the approach reflected in Shubane v The State (073/14) [2014] ZASCA 148 (26 September 2014).


The court treated dolus eventualis, as opposed to dolus directus, as not automatically mitigating in the minimum-sentence enquiry. The form of intention was assessed in light of the concrete factual circumstances of the killing, including the sustained nature of the gagging and the accused’s appreciation of the deceased’s inability to breathe, in deciding whether the murder was materially less blameworthy for sentencing purposes.


The judgment applied the principle that remorse must be genuine and is distinct from mere regret, and that a court may evaluate remorse with reference to an offender’s conduct and the manner in which the offender engages with the proceedings and victim impact, including whether the offender “played open cards” with the court.


The judgment applied the approach that pre-sentence detention is a relevant factor in assessing proportionality of the effective term of imprisonment, but it is not, by itself, determinative of whether substantial and compelling circumstances exist; it forms part of the overall proportionality assessment, consistent with Director of Public Prosecutions v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014).


Finally, the judgment applied the discretionary structuring principle that where multiple offences are tightly connected in time and conduct, a court may order concurrency under section 280(2) of the Criminal Procedure Act to avoid an unduly harsh cumulative effect, while still ensuring that the overall sentence reflects the seriousness of the criminal conduct and the interests of the community.

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[2022] ZAGPJHC 83
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S v Mshubi and Another (Sentence) (SS69/2021) [2022] ZAGPJHC 83 (18 February 2022)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
CASE
NUMBER : SS69/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
18/2/2022
In
the matter between:
THE
STATE
and
LUCKY
MSHUBI

ACCUSED 1
THABO
MAMBILA
JUDGMENT-SENTENCE
DOSIOJ
SENTENCE
[1]
Accused 1 has been found guilty of six counts. Count one is the crime
of murder read with the provisions of s51(1) and Part
1 of schedule 2
of Act 105 of 1997 (‘Act 105 of 1997’). Count two is a
charge of housebreaking with the intention to
commit the crime of
robbery and kidnapping. Count 3 is a charge of robbery read with the
provisions of s51(2) and part II of schedule
2 of Act 105 of 1997.
Count 4 is a charge of kidnapping. Count 5 is a charge of attempted
extortion and count 6 is a charge of
defeating or obstructing the
administration of justice. Accused 2 has been found guilty of five of
the same counts as accused 1,
with the exception of the charge of
attempted extortion which is count 5.
[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 accused 1 are as follows:
He was born in the Eastern Cape on the
26
th
of November 1985 and is 37 years old. His highest
level of education is standard 3 as he dropped out of school due to
financial
constraints. His biological mother passed away when he was
8 years old. He was raised by his stepmother. He is married and has 3

children aged 2, 9 and 16 years old. Prior to his incarceration he
was the primary caregiver of these children, but due to his

incarceration the mother of the children has taken them to a place
that is unknown to him. Prior to his incarceration he was no
longer
employed because the people where he was working as a security guard
lied to his employer saying that he had broken into
their trucks and
had stolen diesel. He used to earn R2000 but due to these allegations
his salary for one month was reduced to
R1000. He did not have enough
money to buy milk, nappies and formula for the youngest child. After
he was dismissed as a security
officer he tried to look for
employment but he did not even have enough money for taxi fare. In
conclusion this accused stated
that he wanted the family to forgive
him as it was never his intention to kill the deceased. Accused 1 has
a previous conviction
of robbery committed in 2009 for which he was
sentenced to two-years imprisonment.
[4]
The personal circumstances of accused 2 are as follows:
He was born on 22 September
1990. He is currently 31 years old. He has 2 children aged 2 and 5
years respectively. His kids are
in the Eastern Cape and they live
with their mother who is unemployed. The highest grade accused 2
passed was standard 5. He dropped
off in standard 6 because of
financial constraints. He has been in custody since May 2021. He was
staying in Pumla Mqashi with
his sister prior to his arrest. He
stated that he helped accused 1 to commit the crime because he wanted
money. He was going to
send the money to his kids in the Eastern
Cape. The last amount that he sent to his kids was R350-00. In
conclusion he stated that
he wants to say sorry to the family of the
deceased
SERIOUSNESS
OF THE OFFENCES
[5]
In respect to the seriousness of the offences this court would like
to state as follows:
These crimes were committed in the
early morning whilst the deceased and her four children were asleep
in their home. The deceased
was kidnapped and removed from her own
home by force and was buried in accused 1’s garden.
[6]
The State called two witness in aggravation of sentence, namely Mr
Ismael Genner (the deceased’s father and Naailah Genner
(the
deceased’s sister).
[7]
Mr Ismael Genner testified that the deceased had four children aged
ten years, seven years, four years and 1 year and 8 months.
On the
22
nd
of April around 06h30 there was a loud knock at their
door and the four children of the deceased, who live 2 flats away
from them
were outside the door screaming and crying. His ten
year-old grand-daughter was holding his one-year old grandson in her
arms and
his other grandson was holding the ten-year old’s leg.
His grandchildren narrated what had happened to the deceased and also

explained that two of the grandchildren were assaulted as well. This
witness saw strangulation marks as well as a blue eye on his

grand-daughter. His grandson also had an injury to his hand which his
grandchild stated was sustained by the men hitting him with
a brick
before they took his mother away. This grandson also had a bandana on
his mouth which the grandson informed him was put
on his mouth to
prevent him from screaming.
[8]
The effect of this ordeal on his family was huge as the family had to
source various psychologists to assist the grandchildren
and Mr
Genner’s wife who were traumatised by this ordeal. In addition,
the deceased’s husband moved into a home with
Mr Genner and his
wife as the deceased’s husband could no longer cope on his own
or look after all four children. The youngest
grandchild went to live
with the deceased’s sister and her husband.
[9]
Naailah Genner testified that the youngest of the deceased’s
children live with her now. She stated that although this
child is
young, he will have many questions about his true mother. She
expressed in very clear terms that these children will mourn
their
mother and that this ordeal has been very difficult.
[10]
It is clear that Mr Ismael Genner and his whole family suffered
terribly as a result of the loss of a daughter, mother and
sibling.
[11]
This country has witnessed an ever-increasing wave of violence.
Kidnapping for ransom and murders are on the increase. Innocent
and
defenceless victims continue to fall prey to these types of offences.
In this instance, a young married mother with four children
was
brutally kidnapped, tied up, smothered to death and buried in the
garden of accused 1.
[12]
Murder is the most serious of crimes. It not only ended the life of
the deceased but it left much pain for the family members
left
behind.
INTERESTS
OF THE COMMUNITY
[13]
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 of helpless and innocent
victims have
reached high levels, the community craves the assistance of the
courts.
[14]
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.
[15]
In respect to the murder count, 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.
[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]
Notwithstanding the application of the prescribed minimum sentences
in respect to count 1 and 3 this court has considered other

sentencing options, however direct imprisonment is the only suitable
sentence as both accused are a danger to the community.
[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 sentence.
[20]
Accused 1 lost his job as a security officer and he didn’t have
enough money to even get a taxi to go and find a new
job. Although it
may seem at the outset that he committed this crime out of need, the
value of the items, namely real exhibits
1-5 was very low, as stated
by the State Advocate it would possibly have amounted to a value of
R200. In addition, the car that
was taken was never sold, therefore
this court cannot come to the conclusion that this crime was
committed out of need. It is rather
clear to this court that this
crime was committed out of need to get revenge.
[21]
Accused 1’s counsel argued that the following are substantial
circumstances not to impose the minimum prescribed sentences
in
respect to count 1and 3, namely:
1.That accused 1 is 37 years old
and that although he has one previous conviction of robbery which is
more than 10 years old, that
this previous conviction should be left
out of account when determining an appropriate sentence.
2. That even with very little
education accused 1 having achieved grade 3 at school, he still
managed to work and earn a living
and maintain his family.
3. That accused 1 pleaded guilty
to counts 2, 3, 4 and 6 and told the police and this court what had
transpired on the day the deceased
was kidnapped and died.
4. That the accused apologised
to the family of the deceased in court.
5. That the murder was not
planned and that this court found him guilty of murder on the basis
of
dolus eventualis.
6. That accused 1 was shocked
when he realized that the deceased had passed away.
[22]
As regards accused 2, it is clear that accused 2 harboured no grudge
against the deceased, however, accused 2 was paid R150
and this is
not a large sum for this court to assume he committed this crime out
of need. It is clear accused 1 aligned himself
with the actions of
accused 1. The reasons why he did so are unknown to this court
because from the inception, accused 2 never
played open cards with
the court.
[23]
The fact that the accused are 37 and 31 years old respectively, 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).
[24]
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’.
[25]
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.’
[26]
The counsel for accused 1 referred me to the case of S v Swart
1999
(2) SACR 380
(C) where it was stated that ‘not all murders
carry the same moral blameworthiness, …… and it is to
say that
there is a difference even in the heart of darkness’.
This court must state that this deceased was in the company of both

accused for a considerable amount of time. Already at the time the
accused exited the gate of the deceased’s complex, accused
1
saw that the deceased could not breathe. Yet irrespective of this
observation, the deceased was left with a dish cloth in her
mouth. In
addition, her hands were tied behind her back to prevent her from
removing the cloth from her mouth. There is nothing
about this murder
that makes it in anyway less serious than any other murder. In fact,
this form of smothering or gagging is nothing
more than a planned
torture of the deceased. Even though the accused were found guilty of
murder on the basis of
dolus eventualis
and not
dolus
directus
, I find no basis to find that this gruesome murder and
burial of the deceased was any less heinous than other murder cases
that
are heard in the high court. In fact the only differentiation
between a murder where
dolus directus
is the required
mens
rea
as opposed to
dolus eventualis
, is that the death
itself may have occurred quicker in a situation of
dolus directus
as opposed to
dolus eventualis
.
[27]
Although accused’s counsel argued that the fact that an accused
had intent in the form of
dolus eventualis
rather than
dolus
directus
may be a factor to be taken into account in reaching a
conclusion that there are substantial and compelling circumstances to
depart
from the prescribed minimum sentence, so too is the fact, as
in the matter
in casu
that the continued and prolonged gagging
and smothering of this deceased is a factor to be considered why
there are not substantial
and compelling circumstances in respect of
count 1. To add to this, even though the accused were not charged for
the assault of
the young children of the deceased, the testimony of
the deceased’s father states that the children of the deceased
were
also assaulted during the kidnapping of the deceased. This was
not disputed during cross-examination and neither did the accused

express any remorse towards the deceased’s children. The
horrific circumstances that prevailed on that early morning on this

deceased’s household cannot be over-looked by this court.
[28]
Although remorse is definitely a factor that this court should
consider when imposing a sentence, there is a difference between

regret for what you have done as opposed to genuine remorse that
comes from your heart. This court observed the two accused when
the
deceased’s father and sister testified. Both the deceased’s
father and sister continually broke down crying and
battled to give
their evidence as to how much this tragic event had impacted on their
lives. Both accused on the other hand merely
looked on. At no stage
did this court observe any grief on the part of both accused for the
crimes they had committed. Had the
accused been under such shock,
immediately after the death of the deceased, they would not have
smoked dagga and consumed liquor
regardless of what had happened. It
is noteworthy that accused 2 disputed the confession that he made and
never pleaded guilty
to the charges 1,2,3,4 and 6. If he truly wanted
to show remorse, he would not have placed the court through a trial
within a trial
to eventually find that the confession was correctly
made. In fact, accused 2 later admitted the confession was made
according
to all the correct procedures.
[29]
Any offence which has the effect of holding a human life cheap and
involves any loss of life is serious. This sentiment should
be
reflected in the sentence imposed by the courts.
[30]
Accused 1 and 2 knew that if one cannot breathe you will die. The
fact that neither the deceased’s husband or brother
paid any
ransom allows this court to find that the accused wanted the deceased
to suffer. This was a revenge attack. It was stated
by both Mohammed
Genner and accused 1 in his confession that if no one paid money,
someone would die. No money was received and
the accused left this
deceased to die like an animal.
[31]
The charge of murder on count 1 falls under the provisions of part 1
of schedule 2 in that the offence was committed by a group
of persons
acting in the execution or furtherance of a common purpose.
[32]
This Court finds there are no substantial and compelling
circumstances present in respect to the accused that warrants a
departure
from the prescribed statutory norm in respect to count one.
[33]
Both accused have been in custody since 22 and 27 April 2021
respectively. 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.
[34]
In respect to the second charge of housebreaking, the third charge of
robbery and the fourth charge of kidnapping, this court
finds they
are inextricably linked in that they happened almost at the same time
or at most, in a very short period from each other.
[35]
Accused 1 pleaded guilty to count 2,3,4 and 6 whereas accused 2
pleaded not guilty to all counts. It is so that in respect
to count 3
there is a minimum sentence applicable in that the offence of robbery
involved the taking of a motor vehicle, accordingly,
count 3 falls
under the provisions of schedule 2 part 11 and the minimum prescribed
sentence is 15 years imprisonment applicable
for a first offender of
robbery and a sentence of twenty years imprisonment applicable in
respect to a second offender.
[36]
This court has considered the effect of a previous conviction of
robbery which accused 1 has and even though it was committed
in 2009
it remains a previous conviction. Accordingly, in respect to accused
2 the sentence of 20 years imprisonment should apply.
However, this
Court has taken into consideration that accused 1 did plead guilty in
respect to count 3 and this court finds it
is a substantial and
compelling circumstance not to impose a term of 20 years
imprisonment. Accordingly, in respect to count 3
accused 1 is
sentenced to 17 years imprisonment. Accused 2 is sentenced on count 3
to 15 years imprisonment.
[37]
In respect to count 2, for the charge of housebreaking, both accused
are sentenced to 5 years imprisonment. In respect to count
4 both
accused are sentenced to 2 years imprisonment.
[38]
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.
[39]
This court orders that the sentence imposed on count 2 and 4 in
respect to accused 1 will run concurrently with the sentence
of 17
years imprisonment imposed on count 3. In respect to accused 2, the
sentences imposed on counts 2 and 4 will run concurrently
with the
sentence of 15 years imprisonment imposed on count 3.
[40]
In respect to count 5 accused 1 is sentenced to 3 years imprisonment.
[41]
In respect to count 6, it is clear that the hiding and burial of the
deceased in the ground led to an increased state of decomposition
of
the body complicating the ability to determine the cause of death of
this deceased. Any form of defeating the ends of justice
needs to be
punished harshly. In respect to count 6 both accused are sentenced to
6 years imprisonment.
[42]
In the result the following order is made:
Count 1
Both accused are sentenced to
life imprisonment
Count 2
Both accused are sentenced to 5
years imprisonment
Count 3
Accused 1 is sentenced to 17
years imprisonment
Accused 2 is sentenced to 15
years imprisonment
Count 4
Both accused are sentenced to 2
years imprisonment.
Count 5
Accused 1 is sentenced to 3
years imprisonment
Count 6
Both accused are sentenced to 6
years imprisonment
Accused 1
In terms of s280(2) of the
Criminal Procedure Act, the sentence of 5 years imprisonment  on
count 2, the 2 years imprisonment
in respect to count 4 will run
concurrently with the 17 years imprisonment imposed on count 3.
Accused 2
In terms of s280(2) of the
Criminal Procedure Act, the sentence of 5 years imprisonment on count
2, the 2 years imprisonment in
respect to count 4 will run
concurrently with the 15 years imprisonment imposed on count 3.
[43]
In terms of section 103 (1) (g) of Act 60 of 2000, both accused are
declared unfit to possess a firearm.
D
DOSIO
JUDGE
OF THE HIGH COURT
Date
sentence imposed:
18 February 2022
Appearances:
On
behalf of the State
Adv Le Roux
On
behalf of Accused 1
Adv Milubi
On
behalf of Accused 2
Adv Monare

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