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2023
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[2023] ZAECQBHC 24
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S v Lekhooana and Another (CC 1/2021) [2023] ZAECQBHC 24 (19 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: CC 1/2021
In
the matter between:
THE
STATE
And
LEBOHANG
LEKHOOANA
Accused 1
VUSUMZI
MSI
Accused 2
JUDGMENT
ON SENTENCE
Cubungu
AJ:
INTRODUCTION
[1]
The court
has reached a difficult stage of proceedings that of imposing
appropriate sentences to the offenders before court. This
process
involves a very delicate balancing act, taking into account, the
seriousness of the offences perpetrated by the offenders,
their
personal circumstances and the interest of society. In the case of S
v Zinn 1969 (2) SA 537 (A)
[1]
this is what is mostly referred to as the triad. The court must
also consider the recognised objectives of sentencing being
prevention, rehabilitation, deterrence and retribution.
[2]
The
offenders before court are convicted of murder of Phumza Wendy Skade
(the deceased), as well as unlawful possession of firearm
and
ammunition in contravention of the Fire Arms Control Act. The
provisions as contemplated in section 51, Part 1 of Schedule
2 of the
Criminal Law Amendment Act
[2]
are applicable in this matter and the issue, which the court has to
grapple with, is whether to impose the prescribed minimum sentences
or to deviate from such sentences.
Criminal
Law Amendment Act
[3]
The
prescribed minimum sentences have been ordained to be the sentences
that should ordinarily be imposed unless the court finds
substantial
and compelling circumstances, which justify a departure therefrom.
[3]
The Supreme Court of Appeal has indicated that the minimum sentences
must not be departed from for ‘flimsy reasons’
and are a starting point when imposing a sentence.
[4]
In the case of S v Malgas, the proportionality test was developed in
cases
were substantial and compelling circumstances do not exist,
which is if the court is of the view that, having regard to the
nature
of the offence, the personal circumstances of the offenders,
and the interest of society, it would be disproportionate and unjust
to impose a prescribed minimum sentence, then a sentencing court is
entitled to depart from imposing such sentence.
What
are substantial and compelling circumstances?
[5]
The meaning of substantial and compelling circumstances is not
defined
reason being that when sentencing an offender a court has to
evaluate all the evidence, including the mitigating and aggravating
factors to decide whether substantial and compelling circumstances
exist. A court must consider all circumstances and for circumstances
to qualify as substantial and compelling, they need not be
‘exceptional’ in the sense that they are seldom
encountered
or rare, nor are they limited to those which diminish the
moral guilt of the offender.
[6]
In circumstances where a court is convinced, having considered all
the
factors that an injustice would be done if a minimum sentence is
imposed, then it can characterise such factors as constituting
substantial and compelling circumstances.
[7]
In S v Vilakazi
2009 (1) SACR 552
SCA the court held that particular
factors, whether aggravating or mitigating, should not be taken
individually and in isolation
as substantial and compelling
circumstances. In deciding whether these circumstances exist, one
must look at traditional mitigating
and aggravating factors and
consider the cumulative effect thereof.
[8]
When sentencing a court takes into account the offenders ‘personal
circumstances, however, only some of these carry sufficient weight to
tip the scales in favour of the offender to impact on the
sentence to
be imposed. The fact that the offender is young and is a first
offender has the effect of reducing a sentence, as there
is potential
for the offender not to repeat the crime and to be rehabilitated.
Mitigating
and Aggravating circumstances
[9]
The offenders did not lead any evidence in mitigation of sentence but
Ms Coertzen made submissions from the bar to be considered by the
court when imposing sentence and which she argued should be regarded
as substantial and compelling circumstances.
[10]
The probation officer’s report were submitted as exhibits, “T”
in respect
of the first offender and “U” in respect of
the second offender.
[11]
Ms Landman on behalf of the state, during sentencing part of the
proceedings, led the evidence
of the deceased’s sister Linda
Skade. This evidence and her submissions were to show that no
substantial and compelling circumstances
existed warranting a
deviation from the prescribed minimum sentence.
[12]
I shall now in summary deal with the evidence and the submissions
made by the parties during
the sentencing proceedings and consider
these and the triad of Zinn in determining the appropriate sentences
to be imposed.
The
Offenders: The personal circumstances of the offenders
[13]
Mr Lekhooana, accused number one who has passed as informed by his
legal presentative Ms
Coertzen. He was a 39 year old unmarried man
with eight children. He completed matric and immediately secured
employment at Transnet
as a yard official and worked there from 2001
– 2007. A death certificate and a letter from the Head of
prison, St
Albans Medium A was received to confirm his demise. Prior
to his arrest, he was self-employed practising as a Sangoma, selling
clothes, weaves and cooked meals. With the income received from his
business, he was able to support his family financially. He
comes
from a family of two siblings; his parents are married to each other
though their marital relationship is strained.
He shares a very
close bond with his mother. He has no previous convictions, stands
infront of this court as a first offender,
reportedly in good health,
and is not on any chronic medication. Further to this the following
was reported in respect of accused
one, that he has a strong support
network in the form of his family, he has no history of violence or
aggressive behaviour and
he is known to be a good hearted and humble
person.
[14]
Ms Coertzen highlighted paragraph 10.12 of the probation officer’s
report handed
in and submitted that considering these factors
cumulatively with all the other factors, I must find that substantial
and compelling
circumstances do exist which will justify deviation
from imposing the prescribed minimum sentence.
[15]
In respect of Mr Msi, accused two before court he is thirty years old
unmarried with no
children, he has no previous convictions and is
standing before this court as a first offender. He is self-employed
selling cooked
meat. He lost his mother at the tender age of
nine and was raised by his grandmother who also died when the accused
was 15
years of age. He has no relationship with his father and it is
reported that the first contact from his father was in 2009, as a
result growing up he had no role model or father figure for some
guidance. Ms Coertzen submitted on behalf of accused two
as
well that I consider all these factors taken cumulatively and find
that substantial and compelling circumstances do exist that
will just
an imposition of a lesser sentence than that prescribed.
[16]
It was further submitted on behalf of the accused that sentences
imposed must have a measure
of mercy.
[17]
In aggravation, Ms Landman led the evidence of the deceased sister
who testified about
the trauma suffered by the family because of the
deceased’s death.
[18]
More especially the deceased’s mother who fell ill and
eventually died after having
severely affected negatively by the
death of her daughter. The deceased‘s minor child is motherless
and that in no doubt
has negatively affected this child. One cannot
help but imagine the trauma of a minor child who was dropped off at
crèche
by her mother and the mother was never to be seen
again. No minor child should go through that because of
offenders.
The Skade family lost a breadwinner and had to make ends
meet in order to bury their sister, as she did not have any burial
society.
[19]
Ms Landman submitted that the life has become cheap, because of that,
the community does
not feel safe, and the courts should impose
sentences that would prevent further perpetration of these offences.
She submitted
further that no substantial and compelling
circumstances exist which will justify the imposition of a lesser
sentence. In a nutshell,
she submitted that given the circumstances
of this case the prescribed minimum sentence is
appropriate.
Interest
of society
[20]
Due to the nature of the offences, which have become endemic in our
society the legislature
deemed it necessary to enact the provisions
governing the prescribed minimum sentences. The society demanded that
offenders be
punished for their crimes. However, a court should
strike a balance and must not over-emphasise one factor.
[21]
In
S
v RO and Another
[4]
,
Heher J stated the following at paragraph 30 :
“
Sentencing
is about achieving the right balance or in more high-flown terms,
proportionality. The elements at play are the crime,
the offender,
the interest of society with different nuance, prevention,
retribution and deterrence. Invariably there are overlaps
that render
the process unscientific, even a proper exercise of the judicial
function allows reasonable people to arrive at different
conclusions”.
[22]
There must be an appropriate nexus between the sentence and the
severity of the crime;
full consideration must be given to all
mitigating and aggravating factors surrounding the offender. The
sentence should thus reflect
the blameworthiness of the offender and
be proportional.
[23]
The Supreme
Court of Appeal in
S
v Scott –Crossley
[5]
at Para
35 the court said the following:
“
Plainly
any sentence imposed must have deterrent and retributive force. But
of course one must not sacrifice an accused person on
the altar of
deterrence. Whilst deterrence and retribution are legitimate elements
of punishments, they are not the only ones,
or for that matter, even
the overriding ones
.”
“
it
is true that it is in the is interest of justice that crime should be
punished. However, punishment that is excessive serves
neither the
interest of justice nor those of society
”
Circumstances
of the offence
[24]
In my judgement, I have dealt extensively with facts on which the
accused were convicted
of the offences. Whilst seeking assistant to
sort out her personal problems, unbeknown to her the deceased led
herself into the
hands of the criminals and unfortunately met with
her sudden death leaving behind the minor kids and the Skade family
heartbroken
and without the breadwinner. Their lives will never
be the same again.
[25]
The accused still maintained their innocence despite the overwhelming
evidence pointing
in a different direction and the ultimate
convictions for the offences charged with.
CONCLUSION
[26]
In coming to an appropriate sentence to be imposed for all the counts
I have considered
the facts of the case, the interest of the society,
the accuseds’ personal circumstances and a measure of mercy as
expected
of the sentencing court. Having done so I am of the view
that this is one of those cases demanding the deviation from the
prescribed
minimum sentence.
[27]
Three families have been affected by this tragedy, the family of the
deceased but also
the family of the accused, their lives irreversibly
altered forever.
[28]
It is without a doubt a painful reality that no sentence will ever
bring back the deceased.
[29]
I find that taking into account all that is relevant cumulatively,
and as correctly submitted
by Ms Coertzen, the substantial and
compelling circumstances do exist justifying the imposition of a
lesser sentence.
[30]
In the result, the sentences I impose are the following:
Count
2: The accused is sentenced to 18 years imprisonment
Count
3: The accused is sentenced to 5 years imprisonment
Count
4: The accused is sentenced to 2 years imprisonment
I
order that the sentences in count 3 and count 4 should run
concurrently with the sentence imposed in count 2.
The
accused is sentenced to an effective 18 years imprisonment.
The
accused is declared unfit to be licenced for a firearm in terms of
the provisions of the Firearms Control Act.
S.
CUBUNGU
ACTING
JUDGE OF THE HIGH COURT
Appearances
Obo
the State:
Adv
L. Landman
NDPP,
Gqeberha
Obo
the Defence:
Adv
J. Coertzen
Legal
Aid South Africa, Gqeberha
Date
of Conviction:
16
January 2023
Date
of Argument on sentence:
10
March 2023
Date
of Sentence:
19
April 2023
[1]
S v Zinn 1969 (2) SA 537 (A)
[2]
Act 105 of 1997
[3]
S v Malgas 2001 (1) SACR 469 (SCA).
[4]
2000 (2) SACR 248 (SCA)
[5]
2008 (1) SACR 223
(SCA)