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[2016] ZAECPEHC 23
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S v Kambe and Others (CC21/2014) [2016] ZAECPEHC 23 (29 April 2016)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: CC21/2014
In
the matter between:
THE
STATE
And
THOBANI
KAMBE
VUSUMZI
BADI
NKOSINATHI
FANI
MASIXOLE
SOLANI
SITHEMBISO
MAYINJE
THEMBEKILE
NDABANKULU
Accused
Coram:
Chetty J
Heard:
25 April 2016
Delivered:
29 April 2016
Chetty
J:
[1]
This case exemplifies the brutal character of the society in which we
live – a walk along our streets have become fraught
with
danger, typified by the senseless killing of the deceased who
unfortunately came within the radar of the accused, a group
of
brigands, preying on the innocent and defenseless. Having been
robbed of his meager possessions, he was unceremoniously
dragged away
and summarily executed. My factual findings hereanent, extrapolated
from the judgment, were as follows: -
“
[13]
The events which unfolded behind the R5 store rests primarily on the
testimony of accused no. 1 and
Amanda
.
She testified that as she ran home she witnessed accused no. 1, axe
in hand engaged in a striking motion. She then saw accused
no. 6
armed with an instrument which she described as an assegai but was
constrained to admit that she did not observe him doing
anything
therewith. When the three accused, i.e. accused no.’s 1, 5 and
6 emerged from the area where the deceased’s
body was
eventually retrieved, she noticed that accused no.’s 5 and 6’s
shirts were covered in blood. Accused no. 6
came to her and
threatened her with death should she reveal what had transpired that
evening. The only other account of the manner
in which the deceased
met his demise is that of accused no. 1, who fingered accused no. 5
as the murderer. His exculpatory account
must however fall to be
rejected.”
[2]
It is furthermore apparent from the judgment that all the accused
were active participants in the robbery. Their collective
conduct was
described in the judgment as follows:
“
[14]
It is against this factual matrix that the liability of the
individual accused must be assessed. Their guilt on
the robbery count
presents no difficulty. The evidence of
Amanda
conclusively establishes that they pursued the deceased,
Luyanda
and
Mpilo
en masse and gathered around the deceased once he had been grabbed by
accused no. 3. Whilst laying prone on the ground she observed
accused
no.’s 2 and 4 removing the deceased’s pants. Although
accused no. 4 denied being party to the theft of the
deceased’s
pants, that denial is clearly false. An independent witness, Ms
Thenjiwe
Dingana
observed him and accused no. 2 arguing over the pants in the early
hours of the morning. His cousin, Ms
Thabisa
Gcakasi
testified that he admitted his complicity in the robbery to her.
Although it was put to her by Mrs
Theron
that he denied having said that he participated in the robbery, his
evidence thereanent must be rejected as palpably false. Accused
no.
5’s direct role in the robbery is also clearly established.
Amanda
heard him saying that he wanted the phone and immediately thereafter
the chase and subsequent apprehension of the deceased occurred.
Accused no. 6 is, on his own admission, guilty of robbery.”
[3]
Amanda’s
evidence establishes that the catalyst for the attack upon the
deceased and
Luyanda
was the fateful ringing of Mr
Koba’s
cellphone. Accused no. 5’s insatiable desire to possess the
phone caused the accused collectively to chase after their hapless
victims until the deceased was apprehended and felled by the axe
wielded by accused no. 1. Incapacitated by the blow, his meager
possessions i.e. the clothing and shoes he was wearing, was removed
from his body by the accused. Whilst I accept that the attack
upon
the deceased was not premeditated, the spontaneity of the conduct in
pursuing the deceased and his friends establishes a propensity
for
violence on the part of the accused.
[4]
Such violent tendencies manifested itself in the gruesome manner in
which the deceased met his untimely death. In paragraph
5 of the main
judgment, I detailed the extent and severity of the injuries to the
deceased. It is unnecessary to regurgitate them
in this judgment.
Suffice it to say that
ex
facie
the condition of the deceased’s cadaver, he was butchered.
[5]
In my judgment I found that accused no’s 1, 5 and 6 dragged the
deceased’s body to the rear of the R5 store and
that on the
totality of the evidence they, either individually or collectively,
murdered the deceased. It is not in issue that
such conviction
triggers the imposition of the mandatory sentence of life
imprisonment absent a finding that there are substantial
and
compelling circumstances which militate against the imposition of
such a sentence. I have been urged by accused no’s
1, 5 and 6’s
legal representatives to find that the personal circumstances of the
accused, the spontaneity of the initial
confrontation, their relative
youthfulness, state of inebriation and, save for accused no. 5, their
protracted period of incarceration,
renders the imposition of the
ordained sentence unjust.
[6]
The personal circumstances of all the accused are comprehensively set
out in pre-sentence reports. Apropos accused no.’s
1, 5 and 6,
their reports were admitted in evidence as exhibits “N”,
“R” and “S” respectively.
Although accused
no. 1’s parents were separated when he was a young boy, they
nonetheless maintained an amicable relationship
and nurtured the
accused throughout his formative years. A promising scholastic career
was however curtailed by his foray into
a world of drugs and alcohol
which his parents reported to be completely at variance with his
character. It appears that his dependency
on drugs cut short a once
promising tertiary education. Accused no. 1 was relatively young at
the time of the commission of these
offences. He was born on 27 May
1994 and almost nineteen years old. He has no previous convictions
and given his family history,
it is difficult to fathom why he armed
himself with an axe and acted in such a brutal fashion.
Notwithstanding the overwhelming
weight of the evidence detailing his
direct participation in the death of the deceased, he has steadfastly
refrained from disclosing
his role and has expressed no remorse for
his conduct.
[7]
Accused no. 5 was 23 years old at the time these offences were
committed. Despite his relative youthfulness, he has a predilection
for violence evidenced by his previous convictions - one for
assault and the other for culpable homicide. For the latter
offence
he was sentenced to eight years imprisonment. As adumbrated
hereinbefore, his utterances precipitated the chain of events
which
led to the death of the deceased. Notwithstanding his conviction, he
too has expressed no remorse for his conduct.
[8]
Accused no. 6 was also 23 years old at the time of the commission of
these offences. His alcohol and drug abuse is well documented
in the
pre-sentence report and his predilection for violence within his
family environment is expounded upon in the pre-sentence
report by
his sister. His violent predisposition finds corroboration in
Amanda’s
evidence that after emerging from the area where the deceased had
been murdered, he threatened her with death should she have the
temerity to report what she had witnessed. He too has expressed no
remorse for his conduct.
[9]
Accused no. 2, 3 and 4, for reasons only known to themselves, were
party, not only in chasing the deceased but dispossessing
him of his
clothing. Accused no.’s 2 and 4 were aged 20 and 19 years old
at the time of the commission of the offences. They
are both first
offenders, and, as appears from the pre-sentence reports, enjoyed
relatively stable home environments. Drugs and
alcohol abuse however
triggered severe behavioural changes which impacted on their
scholastic paths. Accused no. 3 was the eldest
of the accused, aged
28 at the time of the commission of this offence. He has one previous
conviction for theft but according to
the report, never presented
with behavioural problems during his formative years.
[10]
The deceased death has had a profound effect on his family. The
probation officer’s report documents the psychological
consequences of the crime as follows:-
”
7.1
The complainant, Ms Maqolo is a fifty-eight-year-old adult female who
was born and raised in Peddie. She reported
that she is a teacher by
profession and that she relocated to Port Elizabeth during 1984 for
employment purposes. She mentioned
that she has two children, of whom
the deceased was the youngest. The deceased has an older sister.
7.2
Ms Maqolo stated that the deceased, Liwa Maqolo was born in port
Elizabeth and that she raised him as
a single parent. She reported
that his father was, however, actively involved in his upbringing,
both financially and emotionally.
7.3
According to Ms Maqolo, the deceased grew up a healthy child both
physically and psychologically. She
reported that he was raised in a
stable environment in which his basic needs were met. Ms Maqolo
mentioned that the deceased grew
upon in a religious environment. She
stated that he attended church with her and that he was confirmed in
his church.
7.4
The deceased’s father, Mr Kungwayo reported that the deceased
enjoyed playing sport. He reported
that he played cricket and soccer,
however, when he began attending high school he had to choose between
the two and he chose soccer.
Ms Maqolo further shared that during
2006 the deceased was elected to represent the Eastern Cape province
in Johannesburg at a
soccer tournament.
7.5
According to Ms Maqolo, the deceased did not ever present with
behavioural challenges. She reported
that he only made minor
transgressions like any other child, as no one is perfect. She
mentioned that he assisted with chores in
the house and that he knew
that there were no chores for boys or girls, as he was expected and
did assist with all the domestic
chores. Ms Maqolo shared that she
recalled how the deceased would go the extra mile when it was her pay
day because he knew that
he would receive an incentive from her.
7.6
Ms Maqolo reported that the deceased started his schooling career at
Sydenham Primary School. She reported
that he was then enrolled at
Lawson Brown High School and thereafter at Masiphathisane High
School. She reported that the deceased
was an average learner and
that he excelled more on technical work than academics. Due to the
aforementioned, Ms Maqolo reported
that she decided to enroll the
deceased at Qhayiya Further education and Training after he failed
his Grade 11.
7.7
The deceased’s mother stated that during the rime the offence
was committed against the deceased,
he was enrolled as a Civil
Engineering student at Qhayiya FET busy with the first year of his
course. She further shared that prior
to his murder; the deceased was
also sent to initiation school.
7.8
According to Ms Maqolo, the deceased shared a close relationship with
both his parents. His father reported
that he and the victim enjoyed
watching sport together on Television. The deceased’s mother
reported that she also developed
an interest in sport as a result of
the deceased’s involvement in sport activities, as she used to
go and watch the deceased
playing sport. She also mentioned that she
and the deceased attended the Splash festival yearly.
7.9
Ms Maqolo reported that the deceased loved domestic animals. She
reported that the deceased was a friend
of a neighbor who owned
cattle and sheep and that he accompanied him when he went to feed
them. She mentioned that he was popular
and well-liked by his
extended family in Peddie, as he assisted in caring for the domestic
animals when he arrived in Peddie, his
mother’s home town.
This, according to his family, signified that he has not forgotten
his roots.”
[11]
I have reproduced the relevant paragraphs of the report to emphasize
the effect the deceased’s death has had on his family.
The
voices of a victim’s family unfortunately often go unheard but,
in the assessment of an appropriate sentence, they must
be accorded
due weight. To ignore them, would elevate an accused’s
interests above that of the societal demand.
[12]
In the preceding analysis, I recounted the nature of the crime, the
participation of the individual accused, their personal
circumstances
and the interests of society. Notwithstanding suggestions made in
some of the pre-sentence reports that favour a
non-custodial
sentence, this is a case where imprisonment is imperatively called
for. The only extant issues to my mind, being
whether the factors
enumerated on behalf of the various accused constitute the envisaged
circumstances warranting a departure from
the ordained sentence.
[13]
In this regard it is instructive to refer to the judgment of Lewis JA
in
S
v Radebe and Another
[1]
where
the learned judge, apropos, the question whether the length of time
spent awaiting trial per se constitutes a substantial
and compelling
circumstance, said the following:-
“
[13]
In my view there should be no rule of thumb in respect of
the calculation of the weight to be given to the period
spent by an accused awaiting trial. (See also
S
v Seboko
2009
(2) SACR 573 (NCK)
para
22.) A mechanical formula to determine the extent to which the
proposed sentence should be reduced, by reason of the period
of
detention prior to conviction, is unhelpful. The circumstances of an
individual accused must be assessed in each case in determining
the
extent to which the sentence proposed should be reduced.
(It should be noted that this court left open the question
of how to
approach the matter in
S
v Dlamini
2012
(2) SACR 1 (SCA)
para
41.)
[14]
A better approach, in my view, is 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: whether it is
proportionate
to the crime committed. Such an approach would take
into account the conditions affecting the accused in detention and
the reason
for a prolonged period of detention. And accordingly, in
determining, in respect of the charge of robbery with aggravating
circumstances, whether substantial and compelling circumstances
warrant a lesser sentence than that prescribed by the Criminal
Law
Amendment Act 105 of 1997 (15 years' imprisonment for robbery), the
test is not whether on its own that period of detention
constitutes a
substantial or compelling circumstance, but whether the effective
sentence proposed is proportionate to the crime
or crimes
committed: whether the sentence in all the circumstances,
including the period spent in detention prior to conviction
and
sentencing, is a just one.
[15]
That general principle was expressed, first, in relation to the way
to assess whether substantial and compelling circumstances
exist
where a minimum sentence has been prescribed by the
Criminal Law
Amendment Act, in
S
v Malgas
2001
(1) SACR 469 (SCA)
(2001
(2) SA 1222
;
[2001] 3 All SA 220)
where Marais JA said (para 25):
'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.'
That
approach was endorsed by the Constitutional Court in
S
v Dodo
2001
(1) SACR 594 (CC)
[2001] ZACC 16
;
(2001
(3) SA 382
;
2001 (5) BCLR 423).
More recently, in
S
v Vilakazi
2009
(1) SACR 552 (SCA)
[2008] ZASCA 87
;
(2012
(6) SA 353
;
[2008] 4 All SA 396)
, this court explained that
particular factors, whether aggravating or mitigating, should not be
taken individually and in isolation
as substantial or compelling
circumstances. Nugent JA said (para 15):
'It
is clear from the terms in which the test was framed
in
Malgas
and
H
endorsed
in
Dodo
that
it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration
of all the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence.'”
[14]
In my judgment, and in respect of count 1, having due regard to the
circumstances enumerated hereinbefore in respect of accused
no.’
s
2
,
3
and
4
, I am satisfied that there are indeed substantial and
compelling circumstances which justify the imposition of a lesser
sentence
than that ordained by the legislature. Given their minimal
participation in the robbery, their personal circumstances and the
period
spent awaiting trial, a sentence of fifteen years imprisonment
is clearly not justified.
[15]
Although some of these factors are of equal application to accused
no.’
s 1
,
5
and
6
, the enquiry whether the imposition of the
ordained sentence is justified cannot be done piecemeal. The two
offences of which the
accused have been convicted are not disparate -
the murder was merely the culmination of the robbery. There can be no
doubt that
the deceased was not killed because he would have been
able to identify his attackers. Amanda and the deceased’s
companions
who had made good their escape were eye witnesses to the
events which unfolded. There can be little doubt that the killing of
the
deceased was actuated by savagery. The perpetrators of such
horrendous conduct clearly have no place in a civilised society.
Collectively,
the factors enumerated on their behalf do not pass
muster to ward off the prescribed sentence. In their case the
mandatory sentence
is fully justified.
[16]
In the result the accused are sentenced as follows:-
On
count 1, Robbery with aggravating circumstances:
Accused
1, 5 and 6 are sentenced to 15 years imprisonment.
Accused
2, 3 and 4 are sentenced to 10 years imprisonment.
On
count 2, Murder:-
Accused
no.’
s 1
,
5
and
6
are sentenced to life imprisonment.
_________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv Mnyani / Adv A. Canary (instructed by the NDPP)
Obo
Accused No. 1:
Mr R Crompton (Instructed by Legal Aid
Obo
Accused No. 2:
Mr J Riley
Obo
Accused No. 3:
Mr R O’Brien
Obo
Accused No. 4:
Adv E Theron
Obo
Accused No. 5:
Mr Schoonraad
Obo
Accused No. 6:
Mr Ngqakayi
[1]
2013 (2) SACR 165
(SCA)