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[2023] ZAGPJHC 358
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S v Gregory (SS 122/2022) [2023] ZAGPJHC 358 (21 April 2023)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. SS 122/2022
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between:
THE
STATE
and
NTOBEKO
MBONAMBI GREGORY
ACCUSED
Neutral
citation:
The State v Ntobeko
Mbonambi Gregory (Case No. SS122/2022) [2023]ZAGPJHC358 (21 April
2023)
JUDGMENT
– SENTENCE
BHOOLA
AJ
Introduction
[1]
This is a sentence following a conviction arising from a plea in
terms of section 112(2) of the Criminal Procedure Act 51 of
1977 (the
CPA).
[2]
On the 14
th
of February 2023, I convicted the accused of
two counts of murder read with the provisions of section 51(1) of the
General Law
Amendment Act 105 of 1997 (the Minimum Sentence Act) and
one count of rape whereby the accused contravened the provisions of
section
3, read with sections 1 and 55 of the Criminal Law Amendment
Act in terms of the Sexual Offences and Related Matters Matters)
Amendment
Act 32 of 2007 (SORMA)
[3]
Advocate Ehlers appeared for the National Prosecuting Director and
Advocate Mthembu appeared on behalf of the accused
at all material
times.
[4]
Ordinarily, a conviction on the offence of murder read with section
51(1) of Act 105 of 1997 and rape warrants life imprisonment
to be
imposed in terms of the Minimum Sentence Act. However, on acceptance
of the plea by the State, to the exclusion of section
51(1) of the
Minimum Sentence Act, the court pronounced that the accused was
convicted of rape in terms of section 3 of SORMA to
the exclusion of
section 51 (1) of the Minimum Sentence Act.
[5]
The State proved many previous convictions against the accused, The
relevant related ones were assault, and attempted murder.
[6]
The defence submitted that the Court should find that there were
substantial and compelling factors to deviate from the Minimum

Sentence Act and the State submitted that life imprisonment should be
imposed in respect of all three counts.
General principles
[7] In
considering an appropriate sentence, the most important principle is
the so-called triad as stated in
S
v Zinn
[1]
where
it was held that the court should impose a sentence which in its view
is appropriate:
“
What
has to be considered is the triad consisting of the crime, the
offender and the interests of society”.
A
fourth element for consideration, often emphasised by the courts is
the impact on the victim.
[2]
[8] During the sentencing
process a court should never lose sight of the element of mercy.
[3]
The factors for
consideration of sentencing were succinctly summarised by the court
in
S v
Rabie
,
[4]
where Holmes JA said the
following:
‘
[…] with
particular reference to the concept of mercy- (i) It is a balanced
and humane state of thought, (ii) It tempers
one’s approach to
the factors to be considered in arriving at an appropriate sentence,
(iii) It has nothing in common with
maudlin sympathy for the accused,
(iv) It recognises that fair punishment may sometimes have to be
robust, (v) It eschews insensitive
censoriousness in sentencing a
fellow mortal, and so avoids severity in anger and (vi) The measure
of the scope of mercy depends
upon the circumstances of each case.’
[9] It
is important to bear in mind that sentencing is about achieving the
right balance and is proportional to the offence that
was committed.
In arriving at such sentence, one must consider the factual and legal
findings relating to the crime, the offender,
the interests of
society and the victim. Consequently, I must balance these factors in
conjunction with the principles relating
to prevention, retribution,
reformation and deterrence, exercising it judicious discretion. In
doing so, I must ensure that one
element is not unduly emphasised at
the expense of the others
[5]
in
arriving at a just and fair sentence.
[10]
Sentencing has five important functions: (i) It must act as a general
deterrent, in other words, it must deter other potential
offenders
from committing such acts;
(ii)
it
must act as a specific deterrent, in other words, it must deter the
perpetrator from being tempted to act in such a manner ever
again;
(iii)
it
must enable the possibility of rehabilitation or correction, unless
this is very clearly not likely;
(iv)
it
must be protective of society, in other words, society must be
protected from those who do it harm; and
(v)
it
must serve society’s desire for retribution, in other words,
society’s outrage at serious wrongdoing must be placated.
[6]
The Offence
[11]
The accused in this matter was charged with serious offences of
murder and rape. At the onset of the hearing, I explained to
the
accused and he understood that the provisions of section 51(1) read
with section schedule 2 part 1 of the Minimum Sentence
Act, would
apply should he be convicted both of murder and/or rape in the
absence of any substantial and compelling factors
[7]
.
[12] When the accused
visited both the deceased on the fatal day, his sister in law
(deceased number one), took the time and decency
to prepare a meal
for him and treated him as her guest.  Notwithstanding that he
raped her and thereafter, violently bludgeoned
her and her
two-year-old son to death. The elements of planning and premeditation
was present when he went outside to fetch a stone
as a murder weapon
and when that did not work he strangled the deceased and used a razor
blade to cut the deceased in count one
until she succumbed to death.
He disregarded the fact that this was his sister in law and his
nephew, who was only
two years of age. He violated their
Constitutional rights to life, to integrity, dignity and privacy and
violated the sanctity
of family values and the rights of women and
children.  Section 28 of the Constitution, 1996, RSA places an
obligation on
the courts to ensure that the best interest of children
is of paramount importance at all given times. The scourge of
Femicide
and Gender – Based violence is reaching astronomical
heights and is referred to as a pandemic in our country.  It
must
be addressed and be curbed. Many women and children in this
country are almost daily faced with such violent crimes where they
fall prey and suffer in silence.
[13] Regarding the crime
of murder and rape, the definitional elements of the crime have been
satisfied in that the accused acted
voluntarily, thereby causing the
death of both the victims, which was unlawful, with the necessary
intention. Crimes in general,
but especially against woman offend
against the aspirations and ethos of any civilized society.  The
victims in this case
were a soft target for the accused.  The
sentence imposed upon him, in these circumstances, must accordingly
in some measure
reflect a censure to the accused’s conduct and
behaviour.
[14]
In the
Welkom
[8]
case,
the accused pleaded guilty to the charge of murder but not rape. On
appeal, the full bench confirmed the sentence to life
imprisonment on
each count.
[15]
Similarly, in Peloeole
[9]
, the
accused was convicted of two counts of murder and sentenced to two
counts of life imprisonment.
[16]
Regarding the conviction on rape, In
Mudau
v S
[10]
the
Supreme Court of Appeal held as follows:
‘
It
is necessary to re-iterate a few self-evident realities. First, rape
is undeniably a degrading, humiliating and brutal invasion
of a
person’s most intimate, private space. The very act itself,
even absent any accompanying violent assault inflicted by
the
perpetrator, is a violent and traumatic infringement of a person’s
fundamental right to be free from all forms of violence
and not to be
treated in a cruel, inhumane or degrading way.’
[17] It is accepted that
after having raped the deceased in count one, the accused thereafter
murdered her and her two-year-old
son. Rape qualifies under the
section 51(1) of the Minimum Sentence Act for life imprisonment to be
imposed. The court is mindful
on pronouncement of the conviction the
accused was convicted of rape in terms of section 3 of SORMA.
Interest of Society
[18] Murder and rape has
become national sports in our Country. It has become second nature
that children and women are brutally
murdered. In most instance where
women are involved, they are raped and then murdered.  Equality
and Gender Justice Forums
demand that this issue is addressed in
order to maintain a civilized society. The legislators have
introduced victim centered legislation
to deal with the scourge of
gender-based violence and the Courts are expected to apply the letter
of the law to protect and ensure
the safety of its citizens by
delivering value judgments. It is also for these reasons that the law
has prescribed certain mandatory
sentences that the court should
impose in cases like these.
[19]
Society has a legitimate expectation that apprehensible criminal
activities as displayed by Mr. Mbonambi should not be left
undetected
and unpunished. It demands and commands that the courts send out a
clear and strong message that such acts of gruesome
criminality will
not be tolerated and will be dealt with effectively. In
S
v Holder
[11]
the
following was stated:-
‘
In
the application of the principle that imprisonment ought to be
avoided, the penal element must, in serious offences, of whatever

nature, come to the fore and be properly considered, if punishment
still has any meaning in the criminal law. The community expects
that
a serious crime will be punished, but also expect at the same time
that mitigating circumstances must be taken into account
and the
accused’s particular position deserves thorough consideration.
That is sentencing according to the demand of our
time.’
Substantial and
Compelling circumstances.
[20]
The
State submitted the defence did not submit any reasons to deviate
from the Minimum Sentence Act and did not establish any substantial

and compelling reasons.
[21]
He submitted with regard to the rape charges the court has inherent
jurisdiction to impose the Minimum Sentence Act despite
the plea
being accepted in the absence of the Minimum Sentence Act. He
submitted further that there are no substantial and compelling

circumstances to deviate from such a sentence.
[22]
The leading case on what constitutes substantial and compelling
circumstances, is
Malgas
,
[12]
where
the SCA held that ordinarily the prescribed sentence should be
imposed, and that the sentencing court should not deviate from
the
prescribed sentences for flimsy reasons
[13]
.
However, if the prescribed sentence would be unjust or
disproportionate to the offence, then it must be departed from.
Malgas
[14]
does
not replace the court’s unfettered discretion for the
sentencing court to impose whatever sentence it considers fair
and
just.
[23]
The SCA in
Matyityi
[15]
,
clarified that
Malgas
simply
established that the sentencing court must independently apply its
mind to the question of whether the prescribed minimum
sentence is
proportionate to the crime that was committed. If not, substantial
and compelling circumstances exist as contemplated
in section 51(3)
of the Minimum Sentence Act, and the court may not impose the
prescribed sentence.
[24]
Section 51(3)
(aA)
of the
Criminal Law (Sentencing) Amendment Act 38 of 2007
, specifies,
that when sentencing for rape, there are four factors which will not
count as substantial and compelling circumstances
to justify a lesser
sentence. These factors are: the complainant’s previous sexual
history, the apparent lack of physical
injury to the complainant, the
accused’s person’s cultural or religious beliefs about
rape, and any relationship between
the accused person and the
complainant prior to the offence been committed.
[25] It is apposite to
these facts that I would now balance and evaluate a just sentence by
considering the mitigating and aggravating
factors.
Personal
Circumstances of the accused
Mitigating
factors
[26]
The accused elected not to testify in mitigation of sentence, and no
evidential material in which sufficient judicial probative
weight
could be attached was submitted on his behalf.  Advocate Mthembu
submitted he accused’s personal circumstances
in mitigation of
sentence were that:
(a)
he pleaded guilty, thereby taking the court into his confidence and
did not waste the courts time by indulging on hopeless defences.
It
is trite that a guilty plea in circumstances where the case against
the accused is strong, does not serve as a mitigating factor
but
remains a neutral factor.
[16]
The
evidence in this matter would have been direct evidence and
overwhelming. DNA evidence linked the accused to the crime scene.
The
SCA in
Matyityi
[17]
held
in such instances, a plea of guilty was not a relevant factor in
determining an appropriate sentence.
(b)
The
accused was remorseful for his actions by pleading guilty. I was
referred in this regard to  what was said in
S
v Matyityi
[18]
were
Ponnan JA  explained  remorse as a gnawing pain of
conscience for the plight of another and genuine contrition can
only
come from an appreciation of an acknowledgement of the extent of
one’s error, whether the offender is sincerely remorseful
and
not simply feeling sorry for himself at having been caught, is the
factual question. For a court to find that an accused
person is
genuinely remorseful, it needs to have a proper appreciation of what
motivated the accused to commit the deed; what
had since provoked his
change of heart; and whether he does indeed have a true appreciation
of the consequences of those actions.
I have considered the
fact that the accused elected not to testify in mitigation of
sentence, which is his Constitutional right
and prerogative to do so.
To me his silence had negative connotations and consequences in that
he had nothing to say about his
actions.
[19]
These
factors lie purely within his knowledge. The implication of this is
that generally where an accused elects not to testify,
a finding of
remorse cannot be made by the presiding officer.
[20]
I
do not believe that the accused was remorseful but rather regretful
that he was caught by his brother.
(c)
The accused has been incarcerated as an awaiting trial prisoner since
October 2021 which is a long period of time. This may
be taken into
account when an appropriate sentence is imposed.  On a strict
interpretation of the law, this does not amount
to a ‘substantive
and compelling circumstance’, but that having been said,
nothing prevents this court, to take into
account the period that the
offender has been incarcerated, pending his trial, for the purpose of
imposing the appropriate sentence.
However, this does not apply
mechanically by way of an arithmetic calculation.In the present
matter, it is so, that the accused
has been an awaiting trial
prisoner for a long period of time. However, I believe that the
arrest of the offender, in this case,
effectively brought an end to
his criminal activity and resulted in the protection of women and
children in society. Regarding
the significance of time spent in
detention, pre-sentencing, Lewis JA in
Radebe
[21]
,
made it clear that this is merely one of the factors to be taken into
consideration to determine whether the effective sentence
imposed is
proportionate to the crime committed and therefore justified.
(d)
The accused was 34 years of age at the time he committed these
offences. He left school after passing standard eight (8).
According
to him he is on speaking terms with his brother but his brother
denied this.
Aggravating
circumstances and impact on the victim
[27]
Advocate Ehlers led the evidence of Mr. Hossain Mbonambi, who
testified the deceased in this matter was his wife and son. He
was
married to the deceased since 2016. She was a home executive and
housewife. Her duties included duties of cooking, house cleaning
and
looking after the family. There was no domestic help hired to assist
the deceased. He was an auto electrician which entailed
diagnosing
motor vehicles. The deceased assisted him when he would instruct her
to generate and make invoices when he was not at
home. There was no
one else assisting him with that since her demise. He had one child
with the first deceased, who was the deceased
in count two.  The
accused in this matter was his brother.
[28]
The aggravating factors relied upon by the State are:
(a)
that t
he accused and both deceased were
related. Deceased one prepared food for the accused and he was
accepted as a guest in her home
because he was her brother- in- law.
(b) the murder equates to
gender-based violence and the murder of a child, who was only two
years at the time of his death.  The
message that must go out to
others in the community, that the law is serious about Femicide,
Gender Based Violence and the protection
of children. Violent men,
who perpetrate Gender Based Violence and have no regard to the
fundamental rights of our Constitution
and the rights of our
children, must be deterred and they must realise that a lengthy
prison sentence awaits them when they cause
the suffering to innocent
family members.
(c) the husband of the
deceased relied on the deceased to assist with his work at home and
assist him with his business. He was
deprived of this assistance.
(d) deceased one was
killed in three different methods, being hit over the head with a
stone, strangled with a cord and cut on the
neck with a razor. This
was brutal and inhumane.
(e)
the accused has two related previous convictions: assault with the
intent to do grievous bodily harm in 2010 and attempted
Murder in
2012.
He
has previously been found guilty and has a number of other unrelated
previous convictions. The accused previous convictions indicate
that
he has a propensity to commit violent crime, and is therefore
relevant to offences he has been convicted of.  The fact
that
the accused has many other previous convictions, shows that he had
not been deterred by his previous encounters with the law.
He spurned
the mercy showed by the previous court, by continuing with his
lifestyle of criminal activities.
[22]
His previous convictions
indicate that the prospects of rehabilitation are diminished and that
he would not be deterred from the
commission of crime.
[29]
When
I consider the totality of the matter before me,
sentencing
must serve as deterrence of others who consider embarking on a life
of crime. At times rehabilitation will serve no purpose.
In the
present case, I find that rehabilitation should be diminished and
deterrence should come to the fore.
[23]
[30]
A life sentence is the most severe sentence which a court may
impose. It endures for the remainder of the natural
life of the
offender.  Due to the gruesome and violent nature of the crimes
committed and the serious physical injuries sustained
by both the
deceased prior to their deaths, I am unable to find that there are
any substantial and compelling circumstances present
which would
warrant a deviation from the minimum sentence applicable as well as
life imprisonment in the case of rape.
[31]
In the present case, I am satisfied that the aggravating
circumstances so far outweigh the mitigating ones, that the sentence

to be imposed is appropriate and just. I have taken into account
cumulatively the accused’s age, the time spent awaiting
trial,
the fact he pleaded guilty, the issue of remorse and he did not waste
the courts time.   I cannot find any factors
or
circumstances which in my view diminishes the moral blameworthiness
of the accused’s conduct.
[32]
The accused was convicted with both counts of murder read with
section 51(1) of the Minimum Sentence Act and therefore
in the
absence of substantial and compelling explanation, the appropriate
sentence in both the counts of murder will be life imprisonment
in
respect of each count in accordance with the Minimum Sentence Act.
[33]
The court is mindful of the fact that the Court pronounced at
conviction stage that the accused was guilty of Section
3 of Act 32
of 2007, to the exclusion of section 51(1) of Act 1997. However,
given the gravity of the offence and the inherent
jurisdiction of
this court, life imprisonment is clearly called for even if section
51(1) of Act 105 of 1997 is left out of the
equation.  The
accused was informed of life imprisonment and the Minimum Sentence
Act before he pleaded to the offence of
both murder and rape that the
likelihood that if convicted on these charges, it will attract life
imprisonment. He was at all times
legally represented and it is on
that basis that this court would proceed to sentence the accused to
life imprisonment in respect
of Count 3.
[34]
As a result, I, therefore, impose the following sentence on the
accused:
(a)
Count 1 Murder read with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
: life imprisonment.
(b)
Count 2 Murder read with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
: life imprisonment.
(c)
Count 3 Contravention of the provision of
section 3
of the
Criminal
Law Amendment Act (Sexual
Offences and Related Matters) 32 of 2007:
life imprisonment.
Ancillary
Orders
(d)
In terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
the
accused is declared unfit to possess a firearm.
(e)
In terms of 103(4) of the
Firearms Control Act 60 of 2000
, a search
and seizure order for competency certificates, licences,
authorisations and permits, firearms and ammunition is made
and the
Registrar is to be notified in writing of the conviction.
(f)
Because life imprisonment has been imposed, all of these sentences
automatically run concurrently in terms of section
39(2)(a)(i) of the
Correctional Services Act 111 of 1988.
(g)
The complainant was informed of the provisions of section 299A and
the impact and thereof was explained to him. The Registrar
was
ordered to complete the relevant forms has been handed to the
complainant, which was done.
C
B BHOOLA
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
Appearances:
Date
of plea: 3
rd
April 2023
Date
sentence imposed: 21
th
April 2023
On
behalf of the State:
Advocate
Ehlers
On
behalf of Accused:
Advocate
Mthembu
[1]
S
v Zinn
1969
(2) SA 537
(A) AT 540G
[2]
S
v Khumalo
1973(3)
SA 697, S v Matyityi
2011 1 SACR 40
SCA
[3]
S
v Rabie
1975
(4) SA 855
A.D. at 862 D-F
[4]
S
v Rabie
1975
(4) SA 855
A.D. at 862 D-F
[5]
S v Banda
1991
(2) SA 352(B-G)
at 355A
[6]
S v
Loggenberg 2012(1) SACR 462 GSJ Willis J
[7]
Section
51(30(a) of the Minimum Sentence Act.
[8]
Welkom
v S (
CA265/2016)
[2017] ZAECGHC 52 (9 May 2017)
[9]
S
v Peloeole
2022
(2) SACR 349 (SCA)
[10]
Mudau v S
2013
(2)
SACR 292 (SCA) at para [17] (See also
S
v Chapman
[1997]
ZASCA45;
1977 (3) SA 341
(SCA) at
345A-B.)
[11]
S v
Holder 1979 (2) SA 70 (A)
[12]
S
v Malgas
2001
(1)
1 SACR 469
(SCA) at para 25
[13]
S
v Matyityi
2001(1)
SACR 40 (SCA), S v PB 201 1 SACR 1 (SCA)
[14]
See
footnote 12
[15]
See
footnote 13.
[16]
S
v Matyityi
paragraph
13.
[17]
See
footnote 14
[18]
S v
Matyityi
2011 (1) SACR 40
(SCA) para 13, S v Martin
1996 (2) SACR
309
(SCA) par 9.
[19]
S v
Matyityi paragraph 21
[20]
S v
Matyityi 2011 (1) SACR 40 (SCA)
[21]
S v
Radebe
2013 (2) SACR 165
(SCA) at [14]
[22]
S v
Matyityi para 10
[23]
S
v Matyityi
……
.
Para 10