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South Africa: Western Cape High Court, Cape Town
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[2010] ZAWCHC 605
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S v James and Another (SS 29/10) [2010] ZAWCHC 605 (6 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT. CAPE
TOWN)
CASE
NO
:
SS29/10
DATE
:
6
DECEMBER 2010
In the matter between:
THE
STATE
and
KWANELE
JAMES
…...................................................................................
Accused
1
MZUVUKILE
TUSWA
…...............................................................................
Accused
2
SENTENCE
WEINKOVE. AJ
Kwanele you have been
found guilty on two counts of murder, one count of arson, and three
counts of attempted murder. These are
extremely serious offences, and
if I were to sentence you to imprisonment on each count to be served
separately you would have
to spend most of your life in prison. You
have brought shame and disgrace on your family. You have used your
mother's name, and
her untimely passing, as an excuse to perpetrate
cruel and terrible acts of violence against innocent people. You have
killed a
three year old child and his mother, people who had nothing
to do with your grudge against the complainant. You deprived a
grandmother
from seeing her grandson growing up as well as the love
and support of her daughter. You deprived the deceased people of the
pleasure
of their lives.
You created a grudge
against the complainant, you know as well as everybody else in this
Court, in your community and in your family,
that you, according to
the evidence, saw a vision in a bread tin lid, which they call a
magic mirror. In your view there are witches
and wizards and there
are people with supernatural powers. This was a misguided belief in
supernatural powers. It is clear from
the evidence before this Court
that the commission of this crime was premeditated and planned. For
reasons, which I will never
understand, you persuaded yourself that
the complainant was to blame for your mother's untimely death and on
the night of the murder
you decided to kill the complainant,
resulting in that other people that lived in the home were killed.
You resided across the
road from where she lived, and had lived for many years. You knew
that her three young daughters lived with
her, as did her three year
old grandson. You must have seen him playing outside, because at the
age of three he could walk and
he could talk.
You bring shame to your
mother's memory through this terrible act. She worked as a domestic
and out of very little money that she
earned she paid for your
education, and put you in a position to obtain a matric. You failed
to take that opportunity, but at least
you reached grade 11. If one
imagines the sacrifices that she made for her children it would have
been a terrible thing for her
to have lived to see how she wasted her
money on you because you have become a common criminal and a cruel
murderer. No one can
blame the community for being outraged at what
happened. And if on top of all this one were to add the fact that it
was you that
conscripted accused 2, Biza, your so-called friend, to
help you carry out this terrible deed, then your disgrace and cruelty
becomes
even greater.
In
addition you did not play open cards with this Court. If I allow
myself to take into account only the factors that I have mentioned,
which I may say weigh heavily with me,
I
would
have imposed an even longer sentence. I must however take into
account any factors which reduce the moral blameworthiness
of your
offences and which can be taken as extenuating circumstances.
I therefore take into
account that you are a young man, without previous convictions. I
would also take into account the fact that
when you were initially
arrested you confessed to the investigating officer. You also made a
confession to the community, to your
uncle and to a captain of what
you had done, and why you did it. I would also take into account the
fact that you have been detained
in prison since 6 March 2009. It is
a pity that you were either persuaded, or persuaded yourself, that
you were better off denying
all guilt and instead attacked the
honesty and integrity of those involved in this case. Whoever gave
you this advice, if someone
did, then I can assure you they did not
give you advice that served your best interest, but however I will
for the purposes of
sentence have regard to the fact that in the
first instance you did tell the truth. I will also take into account
the fact however,
that however heavy a sentence I impose upon you, I
can never bring back to life those people you murdered. No term of
imprisonment
can compensate the victims for the financial losses they
have suffered because of your terrible acts.
In passing sentence I
must not allow myself to simply appease the public conscience. I must
not allow myself to pass a sentence
which could be likened to a mob
justice penalty. If the sentence I impose upon you is too long there
will be little, if any, hope
of you becoming redeemed. If it is too
light the residents of Kuyasa in Khayelitsha may lose faith in the
judiciary.
Finally I must take into
account the facts which Advocate
Kolenso
so
ably presented to this Court and however angry and outraged I may
feel about this matter I must be mindful of the fact that justice
must be tempered with mercy, and this Court will also bear in mind
that all the offences were committed in one act of throwing
petrol
bombs.
Kwanele please be seated
now and accused 2 please stand.
Biza, accused 2, as far
as you are concerned in law you are as guilty as accused 1 for aiding
and abetting him to carry out these
terrible crimes. You fully
identified yourself with the commission of these offences, to such an
extent that the Court regards
you as a co-offender. You supported him
to the extent of going to buy the petrol. You accompanied accused 1
to the scene of the
crime and helped him make the petrol bombs by
pouring petrol into empty beer bottles. You had no reason whatsoever
to wish to harm
anyone in the complainant's house, least of all her
children and the little three year old boy. You also had the
privilege of a
good education, your parents sent you at what must
have been incredible costs to a private school where you almost
matriculated.
You should have stopped Kwanele from carrying out his
acts, not helped him do it. When you burst into tears in the presence
of
the investigating officer you had good reason to cry, but it was
too late. In your case also you made a confession to the community,
to the investigating officer, and later to Captain van der Merwe.
For
some reason you later on decided you would be better off if you
impeach the honesty of these people and call them all liars
and
denied that you had anything to do with this crime.
I
will
assume in your favour also, as with Kwanele, that someone or some
people may have persuaded you to lie, and to change your
mind about
the initial decision to be honest and truthful. Technically you
deserve to be given the same sentence as Kwanele but
again I must
take into account special factors which apply to you and not to him.
Over
and above the fact that you are a first offender, and still a young
man
I
must
also take into account the fact that this whole scheme, and this
whole enterprise was Kwanele's brainchild. You come from a
decent
background, and
I
cannot
believe that you were so weak-willed as not to try to stop Kwanele
from doing this, let alone helping him.
I
must
also take into account the fact that in your confession to the
captain you did say that you had been drinking that day, and
to an
extent you were affected. It is sad to see that there are not more
young people who seek to further educate themselves and
model their
lives on great leaders like Nelson Mandela, and the great number of
doctors and judges and scientists produced by the
Xhosa people. I
take into account therefore that you were intoxicated that night,
because you said so in your confession. I also
will take into account
that you probably played a lesser role than Kwanele. I therefore
believe that this Court must distinguish
your sentence from Kwanele
and impose a lesser sentence.
Accused land 2 please
both stand.
ACCUSED
1
taking
all factors into account I
SENTENCE
YOU TO 25 (TWENTY FIVE) YEARS IMPRISONMENT ON EACH COUNT OF MURDER
These
sentences are to run concurrently. I
SENTENCE
YOU TO A FURTHER 5 (FIVE) YEARS IMPRISONMENT IN RESPECT OF THE ACT OF
ARSON
.
For purposes of sentence the
THREE
COUNTS OF ATTEMPTED MURDER WILL BE TAKEN AS ONE
and
you are
SENTENCED
TO 12 (TWELVE) YEARS IMPRISONMENT
in
respect of these counts. The sentences of attempted murder and arson
are also to run concurrently with one another, and with
the sentence
of 25 years for murder. You are
SENTENCED
TO AN EFFECTIVE PERIOD OF 25 (TWENTY FIVE
)
YEARS
1MPR1SONME NT .
ACCUSED
2
the
sentence I impose upon you is
15
(FIFTEEN) YEARS ON EACH COUNT OF MURDER
.
These two sentences are to run concurrently. I
SENTENCE
YOU TO A FURTHER 3 (THREE) YEARS IMPRISONMENT ON THE ACT OF ARSON
,
and a
FURTHER
3 (THREE) YEARS IMPRISONMENT ON EACH CHARGE OF ATTMEPTED MURDER
.
All these sentences are to run concurrently with one another, and
with the sentence of 15 years for the murder. In the result
YOU
WILL SERVE A TOTAL SENTENCE OF 15 (FIFTEEN) YEARS IMPRISONMENT.
WEINKOVE,
AJ