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[2016] ZAECPEHC 20
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S v Nkosi (CC29/2013) [2016] ZAECPEHC 20 (30 March 2016)
CASE
NO. CC29/2013
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
DATE: 30 MARCH
2016
THE
STATE
v
NCEBA NKOSI + 3
BEFORE
:
THE HON. MR JUSTICE TSHIKI
JUDGMENT ON
SENTENCE
TSHIKI,
J
:
This
is a judgment on sentence in the matter between the State
v
Nceba Nkosi, Mfundo Reuben Gocini, Ntlakanipho Bukhayi, Francis
Msomi, accused Nos. 1, 2, 3 and 5.
When
the accused were initially charged they were six in number. Accused
No. 6 died before the trial commenced. Accused No. 4 who
was the son
of the deceased. No. 6 was acquitted at the closure of the State
case. That means when the defence case was opened
there were only
four accused in total, that is those listed in this judgment.
Accused
Nos. 1 to 3 were convicted of conspiracy to commit murder at or near
Forest Hill in the district of Port
Elizabeth.
They had conspired with each other to aid or
procure
the commission of and unlawfully and intentionally killed the
deceased, Mlungisi Michael Gwana, a male person, hereinafter
referred
to as the first deceased. The first deceased was murdered with axes,
stabbed with knives and the accused also inflicted
numerous wounds
and injuries on his body. The second deceased, Vuyelwa Gwana, was the
wife of the first deceased and she died before
the case against her
proceeded in Court. She had been charged with the murder of her
husband. Accused No. 5, Francis Msomi, was
convicted of being an
accessory after the fact of murder of the first deceased. At the time
of the offence accused No. 5 was a
police officer. He failed to
report the crime which was committed in his knowledge and in the
premises when he was aware of its
commission and at the premises he
would frequently visit. When this Court convicted accused No. 5 it
remarked as follows:
“
Accused No.
5 has failed to report the crime in contravention of his duties as a
policeman. See
S v PHELO AND OTHERS
1999
(2) SACR 558
(SCA)
. See also
R
v MLAMBO
1957 (4) SA 797
. The mere
failure to report a crime is not unlawful and cannot result in a
conviction of being an accessory after the fact but
the position is
different when a policeman fails to report a crime or to make an
entry in the occurrence book.”
I
must say though that when the trial commenced, accused Nos. 1 and 3
pleaded guilty to the charges and they both tendered statements
in
terms of
Sec 112(2)
of the
Criminal
Procedure Act 51 of 1977
.
During
the sentence stage Mr
Saziwa,
for the first accused, tendered a report on behalf of accused No. 1
which was prepared by a senior probation officer in the service
of
the Department of Social Development. Indeed the report confirms that
accused No. 1 was convicted of conspiracy to commit murder
and a
second count of murder. The report shows that accused No. 1’s
father committed suicide during 1997 and his mother is
still alive.
Accused No. 1 and his two siblings reside with their mother in a two
bedroomed house consisting of a sitting room,
a kitchen and toilet.
Accused no 1 occupies a flat in the backyard, made of zinc and has
access to electricity. Prior to his arrest
the accused was employed
as a casual worker at Cape Building & Truss. His mother receives
a pension from Coca-Cola where she
worked prior to her retirement.
Mr
Skepe
, on
behalf of accused No. 2 submitted,
inter
alia
, that by looking at the personal
circumstances of accused No. 2 the Court will obviously deviate from
the prescribed sentences.
Accused No. 2 was born on 7 February 1980.
He passed Matric and thereafter enrolled at MSC College. He is
married with two girls.
One is 16 years old, doing Grade 11. The
other child is 5 years, attending crèche. At the time of his
arrest accused No.
2 was working at BKB and was earning R780.00 per
fortnight. His mother died in 2010 and his father in 2011. Mr
Skepe
is of the view that there are substantial and compelling
circumstances which justify the evasion of the imposition of the
minimum
sentences.
Ms
Coertzen
,
for accused No. 3, called the evidence of Linda Thotana, the
probation officer. She testified that accused No. 3, Mr Bukhayi,
has
had his challenges and has undergone treatment for depression.
According to the information accused No. 3 was diagnosed with
depression. His family feared that if he was given the treatment for
depression he would commit suicide and therefore suggested
that he
should not be given the medication for depression. There was also a
fear that accused No. 3 would commit suicide. The probation
officer
has in fact allayed the fears of the Court by suggesting that prison
is equipped with all the necessary treatment. Counsel
for No. 3 also
referred me to various decided cases. She submitted that accused No.
3 was 16 years at the time of the commission
of the offences and
therefore a minimum sentence of life imprisonment cannot apply in his
case. She submitted further that the
youthfulness of an offender is a
mitigating factor and should be regarded as persuasive for a lesser
sentence as would have been
imposed if the accused was an older
person.
Accused
Nos. 1 to 3 in this matter were convicted of having murdered the
first deceased by killing him with dangerous weapons. They
were hired
by the close relatives of the first deceased, in particular the first
deceased’s wife. I must say though that
this Court accepted the
evidence of the witness Siyabulela who testified to the effect that
the second deceased, who was the wife
of the first deceased, had a
love affair with accused No. 5. In the present case the murder of the
deceased was planned and premeditated.
It was also committed by a
group of persons acting in the furtherance of a common purpose or
conspiracy.
In
view of the ages of the accused relative to
Sec
51(1)
of the
Criminal Law Amendment Act, 105 of 1997
,
only accused Nos. 1 and 2 are affected by the application of
Sec
51(1)
of the
Criminal Law Amendment Act, 105 of 1997
.
This is so because at the time of the commission of the offences they
were both over the age of 18 years. The result is that they
have a
burden to show this Court why the minimum sentence of life
imprisonment should not be imposed. I must say though that accused
No. 5 is not affected by the provisions of
Sec
51(1)
of Act 105 of 1997
.
The
offences committed by accused No. 1 to 3 are very serious and in such
offences Courts are required to approach the imposition
of sentence
conscious that the legislature has ordained life imprisonment in the
case of accused Nos. 1 and 2 or a particular prescribed
period of
imprisonment as the sentence that should ordinarily and in the
absence of weighty justification be imposed for the listed
crimes and
the specified circumstances. Unless there are and can be seen to be
truly convincing reasons for a different response
the crimes in
question are therefore required to elicit a severe, standardised and
consistent response from the Courts. In this
regard I am quoting from
the case of
S v MALGAS
2001 (1) SACR 467
at 481(25)H – I
. Where
applicable, the specified sentences are not to be departed from
lightly and for flimsy reasons. In this case there can be
no doubt
that the conduct of the accused, especially accused 1 to 3, has
destroyed the first deceased’s family. Both parents
of Mhlali
are already dead as a result of his mother’s greed. This
obviously has the potential to destroy Mhlali and his
siblings as
well. In my view, the conduct of this nature has to be discouraged by
the Courts by imposing competent sentences.
Having
heard the argument by counsel for the accused and counsel for the
State, I am of the view that the following sentences are
just in the
circumstances.
In
respect of count 1, conspiracy to commit murder, accused 1, 2 and 3
are sentenced to
FIVE YEARS
IMPRISONMENT
.
In
respect of murder count 2, accused No. 1 is sentenced to
LIFE IMPRISONMENT
.
In
respect of murder count 2, accused No. 2 is sentenced to
LIFE
IMPRISONMENT
.
In
respect of murder count 2, accused No. 3 is sentenced to
EIGHTEEN YEARS IMPRISONMENT
.
In respect of accused No. 3 the sentences are to run concurrently.
In
respect of count 3 being an accessory after the fact to murder,
Accused No. 5 is sentenced to pay a
FINE
OF R5 000.00
or in default of payment
of the fine, to undergo imprisonment for
TWO
YEARS
.
-------------------------------------
P.W. TSHIKI
JUDGE OF THE
HIGH COURT