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[2010] ZAWCHC 436
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S v Mangena (SS 26/2006) [2010] ZAWCHC 436 (5 August 2010)
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE
NO. SS 26/2006
THE STATE
vs
SYDNEY MANGENA
…..............................................................................................................................
ACCUSED
Coram
DLODLO, J
Judgment
by DLODLO, J
Counsel
for the State ADV. WJ DOWNER (SC) ADV. M SEBELEBELE
Instructed by The National Director of Public
Prosecutions CAPE TOWN
Counsel for the Accused ADV. L. JOUBERT
Instructed by The South African Legal Aid Board CAPE
TOWN
Date(s) of Hearing 17,18,19, 20, 24, 25 MAY 2010 01,
02, 03,10 JUNE 2010 02 & 05 AUG. 2010
Judgment (Sentencing) delivered on: 05 AUG. 2010
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
REPORTABLE
CASE NO. SS 26/2006
THE STATE
vs
SYDNEY
MANGENA
…...........................................................................................................
ACCUSED
SENTENCING DELIVERED ON
THURSDAY, 05 AUGUST 2010
DLODLO, J
[1] Mr.
Mangena, I need to inform you that a wide discretion is allowed to
the trial court in the assessment of punishment, except
only in
instances where a minimum sentence is set by statute. The imposition
of punishment has long been considered to be 'pre-eminently
a matter
for the discretion of the trial court'. See:
R
v Mapumulo
1920
AD 56
;
R
v Dhlamayo & Another
1948
(2) SA 677
(A);
Terblanche
and Roberts
2005
SACJ 187
;
S
v Pieters
1997
(3) SA 717
(A). The discretion I have mentioned above must at all
times be exercised in a proper and judicial manner. See:
Ex
parte Minister of Justice:
in
re
R
v Berger
1936
AD 334
;
R
v Ramanka
1949
(1) SA 417
(A);
S
v Letsolo
1970
(3) SA 476
(A).
[2] In the
exercise of the sentencing discretion I am duty bound Mr. Mangena,
to consider the triad consisting of the crime, the
offender and the
interests of society. See:
SvZinn
1969
(2) SA 537
(A) at 540
CSvDu
Toit
1979
(3) SA 846
(A);
S
v Holder
1979
(2) SA 70
(A) at 744
et
seq.
Just
and fair sentence should be imposed with regard to the triad I have
just mentioned. On this path I am on determine an appropriate
sentence to be imposed on you Mr. Mangena, I also bear in mind that
I must guard against over-emphasizing your interests and
under-emphasizing the interests of the victim and the community at
large. See:
S
v Oosthuizen en 'n Ander
1996
(1) SACR 475
(O). Although it remains a guiding principle that
imprisonment should not lightly be imposed if the objective of
punishment can
be met by another form of punishment, you, however,
fall in a totally different category Mr. Mangena as far as the
murder charge
is concerned. In your particular category it is not a
matter of normal court discretion because the Legislature in its
wisdom
and in a clear endeavour to contain the escalation of serious
crimes like the murder you have been found guilty of, promulgated
the
Criminal Procedure Amendment Act 105 of 1997
. This Act has
become known as the Minimum Sentences Act in legal circles because
it makes provisions that should a person be
found guilty of certain
transgressions falling within its defined ambits, such a person
should be punished in a certain fashion
unless the trial court finds
the existence of substantial and compelling circumstances. In the
latter event, the court will not
be
bound to punish as directed by the Minimum Sentences Act, but may
punish differently in the exercise of its discretion.
[3]
SvDu
Toit
1979
(3) SA 846
(A), a judgment by Rumpff CJ has the following
formulation of note:
"Die
belang van die gemeenskap by
(
n
straf wat opgele word, is veelledig. In sommige gevalle tree die
belang na vore wanneer die gemeenskap beskerm moet word teen
die
gedrag van 'n bepaalde individu. In ander gevalle verdien die belang
oorweging wanneer die orde en vrede in die gemeenskap
ter sprake
kom. In ander gevalle weer tree die belang na vore wanneer lede van
die gemeenskap afgeskrik moet word. In die tyd
waarin ons leef, is
die misdade waaraan appellant skuldig bevind is van so 'n aard dat
die gemeenskap ...nie anders as besonder
hewig geskok kon gewees het
nie en 'n straf ter afskrikking moet gevolglik sterk oorweeg word. "
Regarding
the influence of the sentence on the offender's personal
circumstances the Chief Justice held:
u Wanneer die aard van die
misdaad en die belang van die gemeenskap oorweeg word, is die
beskuldigde eintlik nog op die agtergrond,
maar wanneer hy as
strafwaardige mens vir oorweging aan die beurt kom, moet die voile
soeklig op sy per soon as geheel, met al
sy fasette, gewerp word. Sy
ouderdom, sy geslag, sy agtergrond, sy geestestoestand toe hy die
misdaad gepleeg het, sy motief
sy vatbaarheid vir beinvloeding en
alle relevante faktore moet ondersoek en oorweeg word. En hy word
nie met primitiewe wraaksug
beskou nie, maar met menslikheid en dit
is hierdie menslikheid wat in elke geval, hoe erg ook al, vereis dat
versagtende omstandighede
ondersoek moet word. Hierdie
omstandighede, indien daar is, skep die genadefaktor waarna in
hierdie Hof vantevore verwys is en
wat dan na oorweging van alle
ander omstandighede, moet lei tot 'n gepaste vonnis. "
See page 857 H - 858 B of the
Law Report. Because you in your capacity as the offender Mr.
Mangena, whenever I give due regard
to the interest of society, the
nature of the crimes you stand guilty of, you permanently remain in
the background, hence a full
scale investigation of your personal
circumstances becomes an obligation on the part of the Court.
[4] I
proceed to consider your personal circumstances as testified to by
yourself and as amplified by your counsel in submissions
in
mitigation of sentence.The personal circumstances of yourself, Mr.
Mangena, were communicated to this Court by way of evidence.
You
testified that:
You were born on 19 May 1960
and simple calculation means that you are presently fifty (50) years
old. I am told you were only
forty four (44) years old at the time
you committed the offences. You have six (6) brothers and one (1)
sister. The latter, however,
passed away. You and your elder brother
were raised by your grandmother in Wellington. You told the court
that your grandmother
found it difficult to make ends meet and had
to sell vetkoek and fish to support her family. You and your brother
had to lend
a helping hand in that after school you also sold the
vetkoek and fish to the hostel dwellers.
[5] You told the Court that you
subsequently moved to Paarl where you stayed with your uncle. When
your eldest brother left school
and sought employment in order that
he would be able to support you and your other brothers, he was
arrested in the Transkei.
That resulted in you leaving school. When
your brother was released from prison and was able to resume
employment, you returned
to school. You passed standard nine (9) and
enrolled at the St. Pete's College in Ciskei in order to study as a
Priest. You successfully
completed your studies and you were
ordained in 1978 as a Priest in the Catholic Church. However, in
1994 you were called upon
by the African National Congress (ANC) to
join their office in Cape Town. This happened because you were an MK
member since the
year 1989. You left that job after four (4) months.
Afterwards you joined the South African Police Service as a
sergeant. You
were later promoted to the rank of a Warrant Officer.
You worked for the SAPS for nine (9) years and eleven (11) months.
[6] You left that employment
when you were offered a job at JCI, a company owned by the late
Brett Kebble. You received your monthly
salary from this company
even when you were incarcerated for the present case. Upon being
released on bail, the company continued
to pay you your salary. The
company, however, closed down upon the death of its owner, Brett
Kebble. You then worked for a company
called Q-Drive, but this
company also closed down. You then started your own construction
company. You are the father of six
(6) children ranging from twenty
four (24) to two (2) years of age. You suffer from gout and you find
it very difficult to get
medication in prison. You testified that
you are sorry for what you did and that you phoned the deceased'
mother to ask for her
forgiveness. No previous convictions have been
proved against you. This is undoubtedly an important factor counting
in your favour
as you stand before me today;
[7] The
crimes this Court has found you guilty of are very serious indeed
Mr. Mangena, but murder of your previous intimate partner,
Oceania
Thobeka Vuso is particularly serious. It is very clear to me that
your anger knows no limits at all Mr. Mangena. I remember
clearly
how you angrily dragged Ms Ndludlu out of the car driven by the
deceased at Ndabeni Street intersection, Langa Township.
You dealt
with her rather roughly. Had it not been for members of the public
from the vicinity who intervened, you probably would
have
grieviously injured her. You then told her that she was interfering
in your relationship with the deceased and threatened
her by
informing her that you have bought a gun and that you would kill
her. One saw the same pattern of uncontrolled anger when
you
confronted Gerald Bushule at Apartment 3, Carradale Marina, V&A
Waterfront. Evidence has taught me that Gerald Bushule
was no
stranger to you. He was a friend of yours who is so near to you such
that he wa asked by you to be your best man in the
aborted marriage
planned to take place between you and the deceased. All this did not
matter to you. In truth, Mr. Bushule was
unfairly illtreated. He was
at some point concerned about your unanswered calls which he noticed
on the cellphone belonging to
the deceased. In an honest attempt to
break the impasse between you and the deceased, he telephoned you.
He received a slap in
the face regard being had to your response to
that particular call. I have never come across a man who harbors
anger for such
a long time.
[8] You clearly became angry
actually the day the deceased communicated to you that she was done
with the love relationship which
then existed between the two of
you. Your anger worsened when she did not take your calls even
before the trip to Colesberg.
It shall be recalled that on 16 March
2004 when you assaulted Ms Ndludlu, it was because you wanted to
talk to the deceased and
she was not taking your calls. You hunted
her down and found her driving a car in which Ms Ndludlu was a
passenger. You were
angry. You remained angry until you undertook a
trip to Colesberg. When on you way back you again could not have
your way in
that the deceased could not talk to you, the anger
worsened. Because you long decided to rather kill the deceased and
also Ms
Ndludlu, you decided that that was time to implement your
long hatched plan.
[9] What
kind of person is this who remains angry for months and for so many
hours? You drove a distance of about 800km from Colesberg
to Cape
Town, but you did not reconsider your unlawful decision to go and
kill the deceased. From March 2004 to May 2004 you
did not
reconsider. I thought that human nature is such that anger cools
down and people look afresh at decisions taken. In any
event the
crimes you have been found guilty of ordinarily make it obligatory
for this Court to consider to impose upon you a
term of
imprisonment. All that needs determination is for how long. If I had
my way I would want the Prison authorities amongst
their programs in
store for you, to include a program that deals with anger management
if there is such a program. You must learn
to accept that a woman
even if married to you, remains an independent person who is and
never will be a possession of yours.
She is free to make her own
decisions on virtually everything. She is free to choose who her
friends are. She is also free to
tell you that she no longer loves
you. Yours is merely to accept her decisions and respect them. You
were not, for an example,
entitled to dictate to the deceased that
she may not become a friend to Ms Ndludlu and
visa
versa.
[10] Ms
Fundiswa Jozi was asked in cross-examination to describe what kind
of a man Mr. Mangena was. When she answered and expressed
her view
saying that you are a cruel man, for obvious reasons counsel was not
pleased with that answer. Ordinarily opinion evidence
is not
admissable save where the opinion is that of an expert in the
subject matter. But, when inadmissable evidence is elicited
in the
manner Ms Jozi was asked, it becomes admissable. In any event,
having presided over this matter from beginning till now,
I am of
the view that Ms Jozi's description perfectly fits you. You are a
cruel man. You dealt with the deceased mercilessly.
You
inter
alia
shot
her in her leg, she apparently succeeded to move to outside the
Apartment to escape from you. You shot her a further three
(3)
times. Of these shots two (2) were inevitably designed to be fatal
(in the heart from the front and in the head from behind).
The
remaining shot was from behind in the back. Interestingly the
deceased hid away in the flowerbed below the balcony with Ms
Bulisile. You hunted her down. The first person you came across was
Ms Bulisile. Although she feared you would mistake her for
the
deceased, that was not to be. You knew your target. When Ms Bulisile
said "do not shoot me, I am not Thobeka",
you passed her
gracefully and proceeded to your intended target. You executed your
plans properly. Mr. Mangena, Courts are inundated
with crimes like
these where partners in a relationship kill each other. It is time
now that these crimes be contained. Law enforcement
agencies should
strictly speaking be allowed to focus on crimes out there instead of
crimes in the corridors of lovers.
[11] It is expected of
reasonable citizens of this country to have the ability to contain
any anger. It cannot be an excuse that
a person committed crimes out
of anger. Strangely the anger was directed at certain persons - not
everybody. You hunted down
the deceased and you proceeded to execute
her. You asked Ms Fundiswa Jozi where 'Gogo' was referring to Ms
Ndludlu and you told
Ms Fundiswa Jozi you also wanted to kill Ms
Ndludlu. Your reaction when you saw her (after the arrival of the
police) speaks
louder than words. Ms Ndludlu narrowly escaped death
on 23 May 2004 at Apartment 3 Carradale Marina, V&A Waterfront.
[12] The
State presented evidence in aggravation of sentence. Lisa Anne
Vetten, employed as Senior Researcher and Policy Analyst
at the
Tshwaranang legal Advocacy Centre is also an experienced Counsellor
who has worked with over four hundred (400) women
experiencing
domestic violence. She testified and fully interpreted the Report
she prepared in connection with this matter. The
Report was handed
in as
Exhibit
"L"
in
these proceedings. In her concluding remarks, Ms Vetten stated the
following:
"In
conclusion, very many South African women are subject to violence
and abuse at the hands of their intimate male partners.
Indeed, in
relation to intimate femicide, South Africa records the highest such
figures in the world. That these figures are
so high only
illustrates the extent to which such violence is tolerated and
condoned by many in South Africa. Indeed, a number
of studies
provide empirical support for the widespread acceptance of men's use
of violence to discipline and control their female
partners (Seedat
et al, 2009; Wood, Lambert and Jewkes, 2008; Kalichman et al, 2005;
Chiroro et al, 2004). Both South African
and international data
confirm that terminating a relationship does not necessarily bring
women respite from their former partner's
demands and expectations,
any more than leaving guarantees their safety. In arriving at a
suitable sentence for the accused,
the courts should take into
account the need to deter the widespread nature of violence against
women, as well as make clear
that such conduct cannot be excused or
trivialized, given its extremely serious consequences."
This
is indeed very much concerning, to say the least.
[13] The deceased is now lost
to her immediate family and to her only child, Latitha. She is lost
to her country, South Africa
and her life was taken away by
yourself, Mr. Mangena. No punishment which this Court gives or any
Court could give for that matter,
would ever compensate anybody for
the life the deceased was robbed of in such a gruesome manner.
[14] The
third consideration to be borne in mind is the interest of society.
South African society presently lives in fear because
serious crimes
are gradually becoming difficult to contain. Our legal system and
particularly our Supreme law, the Constitution
guarantees the South
African population safety and protection. It, however, becomes
rather difficult for the State to afford
protection deserved to its
citizens if those that are near and dear to the victims become
themselves perpetrators. Society has
a Constitutional right to look
to the Courts and law enforcement agents for protection. I am duty
bound to express society's
displeasure in the imposition of
sentence. Because if I do not do that part of my duty, I shall have
failed the community on
that aspect and that can understandably at
times result in members of society taking the law into their own
hands. It is in this
context that in
R
v Karg
1961
(1) SA 231
(A) at 236 B the Court observed as follows:
"It
is not wrong that the natural indignation of the interested persons
and of the community at large should receive some
recognition in the
sentences that Courts impose, and it is not irrelevant to bear in
mind that if sentences for serious crimes
are too lenient, the
administration of justice may fall into disrepute and the injured
persons may incline to take the law into
their own hands. "
[15]
However, as I proceed to punish you for the offences you have been
convicted of, I must not punish so as to satisfy the community.
The
sentence imposed cannot be there merely to satisfy the public
opinion. In this regard see in
S
v Mafu
1992
(2) SACR 494
(A) at 496 g-j where the following appears:
"A sentencing policy
that caters predominantly or exclusively for public opinion is
flawed. It remains the Court's duty to
impose fearlessly an
appropriate and fair sentence even if the sentence does not satisfy
the public. "
Baker J of
this Division warned the Courts in
S
v Van der Westhuizen
1974
(4) SA 61
(C) at 66 E - F when he stated:
"...that
justice must be done, but it must be done with compassion and
humanity, not by rule of thumb, and that a sentence
must be assessed
not callously or arbitrarily or vindictively, but with due regard to
the weaknesses of human beings and their
propensity for
succumbing to temptation but
it must also be borne in mind that
the consideration of mercy
must not be allowed to lead to the condonation or minimization of
serious crimes. "
[16]
SSTerblanche
in
his authoratative work on sentence -
Guide
to Sentencing in South Africa
at
page 175 - 176 wrote the following formulation I fully agree with:
"The
interests of society are best served by a sentence which produces
the biggest advantage, or the least potential harm,
to society. Any
positive purpose (positive for the community, that is) which can be
served by the sentence, should therefore
be promoted in the
interests of society. If future crime can be prevented by a
sentence, whether by deterring the accused or
other potential
offenders, whether by reforming the offender, or whether by
protecting society from the offender by other means,
such a sentence
will be in the interest of society. "
[17] Mr. Mangena I regard you
as a person who is extremely dangerous to the community and indeed
you are also a danger to your
own self. I say that you are a danger
to yourself because of the kind of violence you have shown you are
capable of as displayed
towards the deceased. One time you may be
inclined to do the same to some other person who might effectively
defend himself/herself
against you, resulting in you yourself
sustaining serious injuries. But, you are a coward Mr. Mangena. You
attacked this helpless
and indeed defenceless female person. You
chose a soft target for yourself. When it was your turn to die you
ended up holding
the gun against you head - you feared to pull the
trigger. You feared death, but you easily shot and killed the
deceased.
[18] I would
be failing in my duty though, Mr. Mangena, if I omit to mention to
you that it has become one of the principles of
sentencing that the
sentence imposed must as a matter of necessity be blended with an
element of mercy. Mercy has become an element
of justice itself.
Mercy, however, has nothing to do with maudlin sympathy for the
criminal. Mercy has been described as a balanced
and humane quality
of thought which tempers one's approcah when considering the basic
factors of letting the punishment fit the
criminal as well as the
crime and being fair to society. In other words, I need not reduce
an appropriate sentence in order to
make provision for mercy. See:
S
v Rabie
1975
(4) SA 855
(A). The Supreme Court of Appeal has over the years dealt
exhaustively with the question of remorse and/or an element of mercy
referred to above. Whilst this Court remains duty bound to extend
mercy to you Mr. Mangena, it is concerning that after having
shot
the deceased once in the Apartment, you followed her and shot her
further outside the Apartment. You clearly wanted to ensure
that she
died. You showed no mercy towards her. She probably must have been
crying asking for forgiveness of her perceived sins,
but that
clearly did not appeal to you, Mr. Mangena. You wanted no
disturbance in your plan to kill the deceased. As correctly
pointed
out by Mr. Downer, whenever the Court considers the question of
remorse, it is bound also to give deserved attention
to what the
then Appellate Division said in
S
v Seegers
1970
(2) SA 506
(AD) at 511G, namely:
"Remorse, as an
indication that the offence will not be committed again, is
obviously an important consideration, in suitable
cases, when the
deterrent effect of a sentence on an accused is adjudged. In order
to be a valid consideration, the penitence
must be sincere and the
accused must take the Court fully into his confidence. Unless that
happens the genuineness of contrition
alleged to exist cannot be
determined"
You most certainly did not take
this Court into your confidance. You were rather economical with the
truth. You probably thought
you could succeed to deceive the Court.
You withheld vital information hoping that you could be found guilty
of a lesser crime.
[19] As
alluded to
supra,
Mr.
Mangena, the offence, namely murder, you were found guilty of,
imposes an obligation on this Court to punish you in a manner
prescribed by the Minimum Sentence regime. However, section 51 (3)
(a) of that Act stipulates that if I am satisfied that substantial
and compelling circumstances exist which justify the imposition of a
lesser sentence than prescribed, I must enter those circumstances
on
the record of the proceedings and I may only then proceed to impose
upon you such a lesser sentence as I would have determined.
[20] It is
appropriate that I consider the submissions in mitigation made on
your behalf by Ms Joubert. She correctly prefixed
her submissions in
this regard by saying that murder
per
se
is
a horrendous crime and that it not only ends the life of the victim,
but it normally has a tremendous ripple effect in that
those who are
left behind, have to deal with the loss of a loved one and that in
itself is never easy. I ponder and imagine what
will happen on the
unknown day when Latitha shall have grown up enough when she shall
have attained knowledge that she grew up
without her biological
mother merely because the man who rightfully is her biological
father, planned to kill her and subsequently
succeed in executing
the contemplated murder. Ms Joubert in an honest and duty bound
endeavour to assist this Court in identifying
substantial and
compelling circumstances submitted that the sentence applicable to
an offence of murder you stand convicted of,
resorts under Part II
of Schedule 2 of Act 105 of 1997 wherein fifteen (15) years
imprisonment is prescribed. She referred this
Court to
S
v Raath
2009
(2) SACR 46
(C).
[21] Ms
Joubert is most certainly mistaken in this regard. The category
under which the sentencing regime in this matter resides
is properly
set out in the indictment and need not be contused. Moreover, this
Court at Judgment stage found it proved that you,
Mr. Mangena,
carefully planned this murder. The plan was hatched by you in March
2004. You communicated it to Ms Ndludlu. In
May 2004 when you were
on the way from Colesberg, you phoned Mrs. Njokweni and in no
uncertain terms informed her that you were
going to fetch your
firearm from your house and that you would thereafter proceed to V&A
Waterfront in order to shoot and
kill the deceased. The
S
v Raath
case
supra
I
am referred to is totally different from the present case. It hardly
helps this Court because it is distinguishable factually.
According
to Ms Joubert, the following should be regrded as constituting
substantial and compelling circumstances:
This murder
was clearly the result of a stormy love relationship between the
Accused and the deceased. It seems from the evidence
that various
attempts were made by both the Accused and the deceased to try and
make the relationship work, but clearly to
no avail. When the
Accused committed the crime, he was suffering from some sort of
emotional trauma. This was clearly the result
of the stormy "roller
coaster' relationship the Accused and the deceased had;
The Accused has lost his work
and his house as a result of this crime. He furthermore has to live
with the fact that he has
taken the life of the woman he dearly
loved.
The Court
was referred to
S
v
Rammutla
1992
(1) SACR 564
(BA) at 567 where the following
obiter
dictum
stands:
"It has been accepted
by our Courts that where there has been a love relationship which
has been broken, the "injured"
party may well be so
emotionally affected and disturbed that he will resort to violence
resulting in the death of the erstwhile
lover. Such an emotional
state has been regarded as an extenuating. "
[22] The
submissions made by Mr. Downer (SC) carefully crafted features of
this case that are aggravating, namely
inter
alia:
(a) That the murder was
committed with calculation and premeditation;
(b)That Mr. Mangena began to
hatch his murderous intentions against the deceased and Ms Ndludlu
at least by March 2004, some months
before the murder in May. The
firearm was bought. The aggravation lies on the fact that Mr.
Mangena threatened to kill Ms Ndludlu
in March 2004 and proceeded
with this threat in May 2004.
[23] It is
of course true that you wished to impose your will on the deceased
and Ms Ndludlu against their firm indications that
they had
considered the matter and were not prepared to yield to your
demands. This aspect is beyond that I am capable to comprehend.
You
by then had a girlfriend, Phumeza and probably other girlfriends as
well. Why must you force your will on the deceased who
has made it
clear that she was done with the relationship that ever existed
between the two of you? This is indeed the actions
of a man to whom
a lady dare not say T no longer love you'. Love and commitment come
from both sides. How on earth does a person
resort to violent means
to secure his love? That would be no love at all, but a classical
example of abuse. I fully agree with
Mr. Downer that you, Mr.
Mangena, exhibited pervasive cruelty in the manner you executed your
plan to murder the deceased. It
was not only being disrespectful of
Mrs. Vuso, the deceased' mother to telephone her and inform her to
come and take the dead
body of her daughter whom you had killed, but
it was also inhumane, inconsiderate and indeed very cruel.
[24] The
difficulty in your particular matter, Mr. Mangena, is that there are
just too many aggravating factors in this matter.
Your only
mitigating factor as pointed out
supra,
is
that you are the first offender. But, that factor is easily
swallowed by the overwhelming aggravating factors. It is true that
when one is on the path to determine whether or not there exists
substantial and compelling circumstances in this matter, one
would
ordinarily derive benefit by falling back on the decision of the
S
v Malgas
2001
(1) SACR 464
(SCA). This authoritative decision provides a host of
considerations relevant to this enquiry.
Malgas
case
supra
makes
it abundantly clear that the Minimum Sentence should ordinarily be
imposed unless there are truly convincing reasons for
a different
sentence. The Courts are required to regard the prescribed sentences
as being generally appropriate for crimes specified
and they are
enjoined not to depart from such prescribed sentences unless they
are satisfied that there is weighty justification
for doing so. I do
not accept that the factors mentioned by Ms Joubert constitute
substantial and compelling circumstances. It
will be recalled that
the version presented to this Court by Mr. Mangena when he testified
in his own defence was found wanting
and was rejected as a version
that is not reasonably possibly truthful. Of course, it is important
to note that
Malgas
case
supra
also
decided that the ordinary mitigating factors including the personal
circumstances of an accused person may amount to substantial
and
compelling circumstances if same are cumulatively considered. It was
also decided in the
Malgas
case
that 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.
[25] I have thoroughly gone
again through the evidence presented in this case. I have analyzed
and critically evaluated evidence
led by the defence in mitigation
of sentence. I have given due consideration to the submissions made
for and on behalf of the
defence in this matter. I have done all
this because it is my duty to identify and record these substantial
and compelling circumstances
if I find that they do exist. It pains
me Mr. Mangena to inform you that I have been unable to find the
existence of substantial
and compelling circumstances in this case
despite the diligent search I have engaged in.
[26] Having considered the
circumstances of this particular case, I am satisfied that they do
not render the prescribed sentence
unjust such that it can possibly
be described as disproportionate to the crime of murder you have
been found guilty of, yourself,
the offender, and the needs of
society. I am not persuaded that the imposition of such sentence
shall amount to an injustice
being done to you. In short Mr. Mangena
that means that you are a candidate for life imprisonment as far as
Count 4 (murder of
the deceased) is concerned.
[27] After
having given due consideration to everything that deserves the
Court's consideration as mentioned earlier on above,
I sentence you
as follows Mr. Mangena:
(a)
COUNT 1 -
Assault on Ms Noluthando Ndludlu:
You are sentenced to undergo
imprisonment for twelve (12) months.
(b)
COUNT 2 -
Assault on Mr. Gerald Bushule:
You are sentenced to undergo
imprisonment for twelve (12) months.
(c)
COUNT 3 -
Pointing of a firearm at Nomalizo Bulisile:
You are sentenced to pay a fine
of Four Thousand Rand (R4 000.00) or to undergo imprisonment for the
period of one (1) year.
(d)
COUNT 4 -
Murder of the deceased, Oceania Thobeka
Vuso:
You are sentenced to undergo
imprisonment for life.
It is ordered in terms of
section 280
(2) of the
Criminal Procedure Act 51 of 1977
as amended
that the sentences on Counts 1, 2 and 3 shall run concurrently with
the sentence on Count 4.
DLODLO,
J