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[2019] ZAECPEHC 46
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S v Nyangwa (CC25/2018) [2019] ZAECPEHC 46 (7 August 2019)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: CC
25/2018
Date
heard: 2 August 2019
Date
delivered: 7 August 2019
In
the matter between:
THE
STATE
And
XOLANI
NYANGWA
Accused
JUDGMENT
Goosen
J:
[1]
The accused is a 26 year old man. He has no previous convictions. At
the
time of the commission of the offence for which he has been
convicted he was unemployed. He did, however perform the odd casual
job to earn some income. He was living in a backyard shack at his
parents’ home. He is unmarried although he is the father
of a
young child.
[2]
The offence for which he has been convicted is a grave and serious
offence.
The prevalence of the crime of murder is such that
cognisance is sometimes lost of the extreme consequences that flow
from it.
A life is ended. And with it the enjoyment of all of
the rights vested in that person: dignity, equality and freedom, and
the right to life itself. Not only is a life ended, but the
lives of family and friends are irreparably altered. It is for
this
reason that the rule of law requires that the perpetrator should,
generally, be visited with harsh punishment. The act of
punishment
serves as retribution. It serves also to signify that such crimes
will not be tolerated, that there is a significant
and serious
consequence to be suffered by the perpetrator. It is this which our
theory of criminal justice posits as the basis
for deterrence. But,
as a society founded upon the respect for and protection of human
dignity, our criminal justice system also
acknowledges that,
wherever possible, the consequences should be ameliorated where
there is a prospect that the perpetrator
may be rehabilitated and
reintegrated into society upon the completion of the sentence
imposed.
[3]
This is the task that a sentencing court is called upon to carry out.
It is required to take proper cognisance of the nature of the crime
and to determine a sentence which balances the competing interests
of
the society and the individual perpetrator while meeting the
objectives of punishment. It does so in the context of the
fundamental
values that underpin our legal system. It is a task
rightly considered to be very difficult. Guidance is to be derived
from policy
determined by the legislature. It is also to be derived
from the principles encapsulated in judicial precedent, while taking
into
account the particular facts in the matter before the sentencing
court.
[4]
In this instance s 51(2) read with the Schedules to Act
105 of
1997
prescribes a minimum sentence of 15 years for the murder.
Such prescribed sentence ought to be imposed unless the court finds
that
there are substantial and compelling circumstances present which
warrant the imposition of a lesser sentence. It is a well-established
principle that a court will not for flimsy reasons depart from the
prescribed sentence. The court must in its judgment record the
circumstances which it finds to be substantial and compelling. It is
this finding which serves to justify its departure.
[5]
It should be emphasized that the legislatively prescribed sentences,
while
serving as a benchmark, do not preclude the imposition of more
severe sentences. The legislative provisions serve merely as a guide.
Such guidance is to be considered in the light of all relevant
factors, both mitigating and aggravating. Once these are evaluated
the court must ask itself whether the prescribed sentence or that
which it considers ought to be imposed is proportionate and
appropriate.
[6]
Mitigating factors are those which tend to reduce the moral
blameworthiness
of the accused. They are factors which tend to offer
some plausible explanation for the conduct. Traditionally these
include the
“
personal circumstances
” i.e. the age,
social circumstances, education and character of the accused. They
include also factors such as the sobriety
of the accused at the time
of the commission of the offence; the circumstances giving rise to
the offence, the conduct of the accused
in relation thereto and,
importantly his or her attitude to the offence. It is in regard to
this latter factor that consideration
may be given to the possible
acceptance of responsibility and expressions of remorse.
[7]
In the present matter only the personal circumstances of the accused
have
been proffered as mitigating factors. These have been set out
above. Consideration of these factors, however, in their cumulative
effect provides, in my view, no substantial mitigation. They do not
allow for acceptance that the accused’s moral blameworthiness
is diminished. I can find no substantial and compelling reasons to
depart from the prescribed sentence by imposing a lesser sentence.
[8]
The “
mitigating
” factors put up by the accused, on
the contrary, pale into insignificance when consideration is given to
the nature of the
crime. I did not set out in graphic detail the true
nature of the crime in the main judgment. It was not necessary to do
so then.
However, it is necessary to do so now to a greater extent.
[9]
The deceased was 14 years old. She would have turned 15 three weeks
after
the day of the crime. She was subjected to horrific violence.
During the course of the struggle two braids were torn from her
scalp.
The assault upon her commenced in one part of the building and
continued through other parts. Her blood, in the form of spatter
marks, was found in all three rooms. In the room where the main
attack occurred the scene evidence suggests a sustained and vicious
attack. She was bludgeoned with a piece/ pieces of rubble. The post
mortem report records a significant number of wounds suggesting
that
she was bludgeoned repeatedly. Whilst prone on the ground the accused
delivered a blow to her head which caused a large depressed
fracture
of the skull. To do so he used a cinder/cement block. She was then
dragged to another room. Here the assault continued.
She was then set
alight. The fire destroyed her body from mid-torso down.
[10]
The evidence suggests an extraordinary degree of violence. It also
establishes direct physical
contact between the victim and the
accused as the deadly assault was carried out.
[11]
Mr
Stander
, for the state, submitted that the process of
killing the deceased was such as to place the crime in the category
of the most serious.
I agree. It is difficult to conceive of the
degree of violence that was meted out by the accused and what the
victim experienced
in her last moments.
[12]
The accused’s conduct after the event points to a callousness
that is striking. After
bludgeoning the deceased to death and setting
her body alight he returned home. There he proceeded to have sexual
intercourse with
a woman whom he had left there earlier in the night.
This is chilling conduct.
[13]
When the aggravating nature of the crime is weighed against the
mitigating circumstances
present there is, in my view, no doubt that
there is no basis to impose a sentence less than that prescribed. The
only question
that arises is whether a more severe sentence ought to
be imposed.
[14]
Mr
Stander
argued that this was a matter in which the court
should impose a sentence of life imprisonment notwithstanding that it
is not prescribed.
In developing the argument he submitted that,
having regard to the moral blameworthiness, it is anomalous that a
sentence of life
imprisonment can be imposed on an accused who
premeditates a murder and then carries it out by firing a single
fatal shot whereas
in the present case such sentence is not
prescribed notwithstanding the abhorrent and cruel nature of the
crime.
[15]
Nugent JA
drew attention to anomalies of this nature in the context of
sentences for rape, in
S
v Vilikazi
[1]
where he commented as follows:
“
[13] What is
striking about that regime is the absence of any gradation between
ten years' imprisonment and life imprisonment. The
minimum sentence
of ten years' imprisonment progresses immediately to the
maximum sentence that our law allows once any of
the aggravating
features is present, irrespective of how many of those features are
present, irrespective of the degree in which
the feature is present,
and irrespective of whether the convicted person is a first or repeat
offender. On the face of it a first-offending
18-year-old boy who
rapes his 15-year- old girlfriend on one occasion must receive the
same sentence as a recidivist serial
rapist who repeatedly
gang-rapes and beats senseless a disabled victim whom he consciously
infects with HIV. The 18-year-old boy
who rapes his 15-year-old
girlfriend must also receive the same sentence as the adult
recidivist who rapes an infant. The offender
who imprisons and rapes
his victim repeatedly every day for a week is considered to be
no more culpable than one who rapes
his victim twice within ten
minutes. It requires only a cursory reading of the Act to reveal
other startling incongruities. And
when the sentences that are
prescribed for rape in various circumstances are related to sentences
prescribed for other crimes even
more incongruities emerge. It is not
surprising that the leading writer on the subject of sentencing in
this country, Prof Terblanche,
advanced the following acerbic
observation on the Act ten years after it took effect:
'I have
criticised the Act elsewhere and, if anything, have become more
critical with time. There is hardly a provision in sections
51 to 53
that is without problems. The number of absurdities that have been
identified and which will no doubt be identified in
future is simply
astounding. The Act's lack of sophistication disappoints from
beginning to end. There are too many examples of
disproportionality
between the various offences and the prescribed sentences.'”
[16]
The learned judge addressed the anomalies by pointing out that what
is required in determining
whether to impose a prescribed sentence,
is an assessment of the proportionality of that sentence. At
paragraph [18] of the judgment
the learned judge said the following:
“
[18] It is plain
from the determinative test laid down by Malgas, consistent with what
was said throughout the judgment, and consistent
with what was said
by the Constitutional Court in Dodo, that a prescribed sentence
cannot be assumed a priori to be proportionate
in a particular case.
It cannot even be assumed a priori that the sentence is
constitutionally permitted. Whether the prescribed
sentence is indeed
proportionate, and thus capable of being imposed, is a matter to be
determined upon a consideration of the circumstances
of the
particular case. It ought to be apparent that when the matter is
approached in that way it might turn out that the prescribed
sentence
is seldom imposed in cases that fall within the specified category.
If that occurs it will be because the prescribed sentence
is seldom
proportionate to the offence. For the essence of Malgas and of Dodo
is that disproportionate sentences are not to be
imposed and that
courts are not vehicles for injustice.”
[17]
Mr
Bodlo
, for the accused, sought to persuade me on the basis
of proportionality, and in the exercise of mercy, that I should not
impose
the prescribed sentence. For reasons I have already indicated
I am not so persuaded. In my view, a sentence of 15 years’
imprisonment would not be proportionate in that it would be unduly
lenient. It would not adequately reflect the outrage that must
rightly be felt by the society when faced with such egregious
violence visited upon a child. It would also not address the fact,
to
be inferred from the nature of the crime and the accused’s
conduct, that he poses a serious threat to society.
[18]
Mr
Bodlo
also relied on considerations of proportionality in
countering the sentence sought by Mr
Stander
. Such a sentence
it was submitted would unduly emphasize the nature of the crime. I
disagree. This was a dreadful crime carried
out with shocking
violence. To treat it as anything less would bring about an
injustice. He argued also that the court should show
mercy to the
accused. The plea for mercy, however, rings hollow. He has remained
silent throughout. We are left without any explanation
for what
occurred and have no understanding of his view of the crime. He is of
course not to be punished for silence. But he cannot
obtain the
benefit of sympathy without taking the court into his confidence and
without a measure of acceptance of responsibility
for his conduct.
[19]
This court cannot be motivated by maudlin sympathy for the accused.
It is required to deliver
justice. It does so by weighing all of the
factors relevant to sentence when it strikes a balance between the
interests of the
criminal and the society. It is required to impose
punishment which speaks to the crime, the criminal and the interests
of society.
When I take all these factors into account I find that
the only appropriate and proportionate sentence is the maximum
sentence
that this court can impose.
[20]
In the result the accused is sentenced to life imprisonment.
__________________________
G.G
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv M. Stander
NDPP,
Uitenhage Road, North End, Port Elizabeth
Tel
(012) 842 1400
Obo
the Defence:
Mr X. Bodlo
Legal-Aid
South Africa (Port Elizabeth)
Uitenhage
Road, North End, Port Elizabeth
Tel
(041) 408 2800
[1]
2012 (6) SA 353
(SCA)