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[2018] ZAECPEHC 59
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S v Mabope (CC40/2017) [2018] ZAECPEHC 59 (20 September 2018)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between:
Case No: CC40/2017
THE
STATE
And
PHUMZILE
MABOPE
Accused
Coram:
Chetty J
Heard:
17 September 2018
Delivered:
20 September 2018
JUDGMENT
Chetty
J:
[1]
The accused was born on 31 March 1999, and is now nineteen (19) years
of age. He had
a rudimentary education of one year leaving school at
age nine (9) whilst in grade 2. His fleeting scholastic career was
characterised
by truancy and experimentation with drugs and alcohol.
His documented criminal proclivity commenced on 20 December 2014 when
he
committed the first housebreaking with intent to steal and theft
offence. On 25 October 2015 he committed another similar offence,
on
13 November 2015 a further one, on 5 December 2015, yet another and
on 4 July 2016, the trend continued. From January 2017 when
the first
housebreaking of the New Year was committed until 24 February 2017 he
committed no fewer than nine (9) offences (counts
3 to 11) until his
arrest on 3 March 2017.
[2]
The aforegoing convictions, documented in his SAP69’s and the
judgment in
casu
however, merely traverse the latter period of
his adolescent life. His brushes with the law commenced at a very
young age when
his alcoholic parents virtually abandoned him and his
siblings to fend for and feed themselves. The pre-sentence report,
exhibit
“G” compiled by the probation officer Ms
Hini
catalogues the shameful neglect which the accused’s parents
visited upon their children. I have no doubt that the accused’s
initial ascent into crimes of theft and housebreaking with intent to
steal was actuated by the deprivation experienced in his household.
Exhibit “G” details the accused’s criminal conduct
prior to 2014, his placement in the Erica Place of Safety
and
categorisation as a child in need of care. The envisaged children’s
court enquiry however failed to materialise by reason
of the
accused’s abscondment, his parent’s complete indifference
and the dim prospect for his rehabilitation was forever
lost. Ms
Hini’s
report is an exemplary one and I commend her for
the extraordinary effort and care in producing it.
[3]
Whilst I have great sympathy for the accused and accept that his
foray in criminality
was initially actuated by necessity, it is
apparent from his later misdemeanours that success in minor thefts
propelled him to
commit further crimes of ever increasing gravity. In
his plea explanation he acknowledged breaking into a multitude of
premises
and stealing goods of substantial values. Those offences,
delineated in the indictment, were, on the probabilities, clearly not
fuelled by hunger but by an appetite to appropriate items of value to
feed his drug and alcohol dependency.
[4]
The complainants in the various counts all suffered financial loss by
reason of the
accused’s crime spree. The victim impact
assessment reports, exhibits “H” and “J”,
document the anguish
and loss suffered by the victims and their
families and their rightful indignation of what befell them must be
accorded due weight.
Some of them have been forced to relocate to
safer pastures whilst others continue to suffer the trauma of the
violation of their
homes.
[5]
The one inexcusable feature of this case however is the indescribable
horror of what
befell the deceased, Mrs
Vermaak
. She was, as
adverted to earlier, ninety-five (95) years of age. By his own
admission, the accused assaulted her with the direct
intent to kill
her. Given her physique, she presented no threat to him and he could
have stolen her goods and departed. But he
chose not to do so.
Instead he raped her, a nonagenarian in the sanctity of her own home.
Such socially deviant behaviour can never
be attributed to a deprived
social economic background and cannot be countenanced.
[6]
In her submissions before me, Ms
Coertzen
was constrained to concede that a custodial sentence was imperatively
called for but implored me to temper its duration. The indictment
precognised the accused that upon conviction the state sought a
sentence pursuant to the provisions of sec 77 of the
Child
Justice Act
[1]
.
It provides, under the rubric “
Sentence
of Imprisonment”
,
-
“
(1) A child
justice court-
(a)
may not impose a sentence of imprisonment on a child who is under the
age of 14 years at the time of being sentenced
for the offence; and
(b)
when sentencing a child who is 14 years or older at the time of being
sentenced for the offence, must only do so
as a measure of last
resort and for the shortest appropriate period of time.
(2) ......
(3) A child who
is 14 years or older at the time of being sentenced for the offence
may only be sentenced to imprisonment, if the
child is convicted of
an offence referred to in-
(a)
Schedule 3;
(b)
Schedule 2, if substantial and compelling reasons exist for imposing
a sentence of imprisonment;
(c)
Schedule 1, if the child has a record of relevant previous
convictions and substantial and compelling reasons exist
for imposing
a sentence of imprisonment.
(4) A child
referred to in subsection (3) may be sentenced to a sentence of
imprisonment-
(a)
for a period not exceeding 25 years; or
(b)
envisaged in section 276 (1) (i) of the Criminal Procedure Act.
(5) A child
justice court imposing a sentence of imprisonment must take into
account the number of days that the child has spent
in prison or a
child and youth care centre prior to the sentence being imposed.
(6) . . .”
[7]
It is not in issue that murder and rape are offences listed in
Schedule 3 of the Act
and consequently attract a maximum sentence of
twenty-five (25) years imprisonment. The question which arises for
decision is the
appropriateness of such a punishment. Implicit in the
submissions advanced in mitigation is the plaintive cry for mercy. A
sentencing
court must forever be mindful of that consideration but,
as Holmes JA remarked in
S
v Rabie
[2]
“
. . . 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.
(vi) The
measure of the scope of mercy depends upon the circumstances of each
case.”
[8]
The circumstances of this case however militate against the
imposition of any lesser
sentence. The accused is sentenced as
follows –
Count 1:
Housebreaking with intent to steal and theft – 3 years
imprisonment;
Count 2:
Housebreaking with intent to steal and theft - 3 years imprisonment;
Count 3:
Housebreaking with intent to steal and theft – 3 years
imprisonment;
Count 4:
Housebreaking with intent to steal and theft – 3 years
imprisonment;
Count 5:
Robbery – 5 years imprisonment;
Count 6:
Housebreaking with intent to steal and theft – 3 years
imprisonment;
Count 7:
Theft – 2 years imprisonment;
Count 8:
Housebreaking with intent to steal and theft – 3 years
imprisonment;
Count 9:
Rape – 25 years imprisonment;
Count 10:
Murder – 25 years imprisonment;
Count 11:
Housebreaking with intent to steal and theft – 3 years
imprisonment
It
is ordered that the sentences imposed on counts 1, 2, 3, 4, 5, 6, 7,
8, 9, and 11 run concurrently with the sentence imposed
on count 10.
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv M. September
NDPP, Uitenhage Road,
North End, Port Elizabeth
Tel: (012) 842 1400
Obo
the Defence:
Adv J. Coertzen
Legal-Aid, South
Africa, Uitenhage Road, North End, Port Elizabeth
Tel: (041) 408 2800
[1]
Act No, 75 of 2008
[2]
1975 (4) SA 855
(A) at 862D-F