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[2024] ZAECQBHC 10
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S v Jacobs - Sentence (CC 44/2022) [2024] ZAECQBHC 10 (9 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE NO.: CC 44/2022
In the matter between:
THE
STATE
and
ZAMUXOLO
SMALL JACOBS
JUDGMENT ON SENTENCE
GQAMANA J
[1]
“
Murder
committed by a man on a woman should not be treated lightly. It
becomes worse where the perpetrator, as in this instance,
was the
deceased’s partner, who had the duty and responsibility to
protect her and not to harm her. It is killings like the
one
committed by the accused which necessitates the imposition of
sentence to serve not only as a deterrent but also to have a
retributive effect. Violence against women is rife and the
community expects the Courts to protect women against commission
of
such crimes
.”
[1]
[2]
This case as well highlights the plight of vulnerable women in our
society, who are often unable
to defend themselves against their
violent partners. The deceased during her lifetime was involved
in a romantic relationship
with the accused. Sadly, evidence
shows that during the course of such relationship use of drugs and
alcohol was the order
of the day. Even on the horrific day that
the deceased died, both her and the accused had smoked drugs and
consumed alcohol.
The accused’s actions occurred in the
heat of the moment while he was under the influence of drugs and
alcohol, and were
fuelled by jealousy.
[3]
The Supreme Court of Appeal in
Mudau
v S
,
[2]
said
the following:
“
[6]
Domestic violence has become a scourge in our society and should not
be treated lightly, but deplored
and severely punished. Hardly
a day passes without a report in the media of a woman or a child
being beaten, raped or even
killed in this country. Many women
and children live in constant fear. This is in some respects a
negation of many
of their fundamental rights such as equality, human
dignity and bodily integrity.
”
[4]
In this case it is now time for the court to sentence the accused,
for the offence that he has
been convicted for. In imposing a
fair sentence, I must consider the well know triad factors as was
referred to in
S
v Zinn,
[3]
namely,
the personal circumstances of the accused, the nature of the offences
that have been committed and the interests of society.
In doing
so, I should strike a balance and avoid over-emphasising one and
under-emphasising the other. Furthermore, there
should be a
measure of mercy.
[5]
In
S
v Rabie,
[4]
Corbett
JA
(then)
said:
“
A
judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for him
to achieve
that delicate balance between the crime, the criminal and the
interests of society which his task and the objects of
punishment
demand of him. Nor should he strive after severity; nor, on the
other hand, surrender to misplaced pity.
While not flinching
from firmness, where firmness is called for, he should approach his
task with a humane and compassionate understanding
of human frailties
and the pressure of society which contribute to criminality. It
is in the context of this attitude of
mind that I see mercy as an
element in the determination of the appropriate punishment in the
light of all the circumstances of
the particular case.
”
[6]
In the present matter, my point of departure is that the statutory
prescribed minimum sentence
of life imprisonment in terms of the
provisions of
s 51(1)
of the
Criminal Law (Sentencing) Amendment Act
38 of 2007
, read with
Part 1
of Schedule 2 of Act 105 of 1997, as
amended by Act 12 of 2021 should be imposed unless, I find that there
are substantial and
compelling circumstances justifying a deviation.
[7]
In
S
v Malgas,
[5]
it
was emphasised that:
“…
legislature
has ordained life imprisonment or the particular prescribed period of
imprisonment as the sentence which should ordinarily
be imposed for
the commission of the listed crimes in the specified circumstances.
In short, the Legislature aimed at ensuring
a severe, standardised,
and consistent response from the courts to the commission of such
crimes unless there were, and could be
seen to be, truly convincing
reasons for a different response. When considering sentence the
emphasis was to be shifted to
the objective gravity of the type of
crime and the public
’
s
need for effective sanctions against it.
The
specified sentences [are] not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny.
”
[8]
Following and applying the judgment in
Malgas
(
supra)
,
Nugent
JA
in
S
v Vilakazi,
[6]
had
the following to say:
“
[15]
It is clear from the terms in which the test was framed in Malgas and
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. The Constitutional Court
made it clear that
what is meant by the
‘
offence
’
in that context consists of
all factors relevant to the nature and seriousness of the criminal
act itself, as well as all relevant
personal and other circumstances
relating to the offender which could have a bearing on the
seriousness of the offence and the
culpability of the offender.
If a court is indeed satisfied that a lesser sentence is called for
in a particular case, thus
justifying a departure from the prescribed
sentence, then it hardly needs saying tha the court is bound to
impose that lesser sentence.
That was also made clear in
Malgas, which said that the relevant provision in the Act
‘
vests
the sentencing court with the power, indeed the obligation, to
consider whether the particular circumstances of the case require
a
different sentence to be imposed. And a different sentence must
be imposed if the court is satisfied that substantial and
compelling
circumstances exist which
‘
justify
’
it.
”
[9]
It is against the above legal principles that I should consider the
appropriate sentence to be
imposed. In doing so, I must also have
regard to the accused
’
s personal
circumstances, the mitigating and aggravating factors.
[10]
The personal circumstances of the accused
are as follows: he is 34 years of age and
unmarried
.
He has two minor children, (ages 6 and 3) and both of them are under
the care of their mother. The accused however contributes
R500.00 per month maintenance towards their social welfare. Before
his arrest for this case he was employed by Kariega Municipality
on a
casual basis earning an income of R1 400.00 per month. His income was
used partly for his monthly needs and that of the deceased.
His
highest qualification scholastically is grade 10. He has been
in custody awaiting trial for 14 months. He has two
previous
convictions of robbery that were committed more than 10 years ago and
these convictions would not be taken into consideration
for purposes
of sentence.
[11]
The State presented the victim impact assessment statement and it is
evident therein that, the deceased
’
s
death had a serious impact on her family. Although she was
unemployed, but apparently she was able to provide for her family
financially. The deceased left behind two minor daughters and
sadly her children would now grow up without a mother, due
to the
accused’s actions. The deceased’s father has not come to
terms with her death and sadly, her aunt resorted to
find solace by
excessive and abuse of alcohol as a coping mechanism.
[12]
In
S
v Nyangwa,
[7]
Goosen
J
(then)
had the following to say:
“
The
prevalence of the crime of murder is such that cognizance is
sometimes lost of the extreme consequences that flow from it.
A
life is ended. And with it the enjoyment of all 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.
”
[13]
The above remarks are equally relevant to this case. The offence
herein was perpetrated by the accused at
the heat of the moment while
he was under the influence of drugs and alcohol. The accused’s
conduct was fuelled by
anger and jealousy, because the deceased
wanted to leave him and to go and socialise with a group of men who
had been smoking Tik
with her at Charlie
’
s
house in Gwali Street, where the accused had found her earlier.
The deceased also did not sleep at home the night before
the
incident.
[14]
I want to highlight the fact that the accused has committed a serious
offence. A life of a young woman
at her prime age and a mother
of two minor children was lost. Although the accused used
violence
,
it was not excessive in that, he had stabbed the deceased once.
Further, the accused did not waist the court
’
s
time, he admitted his actions and the consequences thereof, although
he held firm on his defence that, he had no intention to
kill the
deceased. I have convicted him of murder on the basis that, he
knew and foresaw the possibility of his actions causing
the
deceased
’
s death and reconciled
himself with that possibility.
[15]
Counsel for the State ardently argued that,
the prescribed life sentence must be imposed because there are
no substantial
and compelling circumstances to deviate from it.
In my view the following factors taken cumulatively, namely, the
circumstances
under which the offence occurred in that, he was under
the influence of drugs and alcohol, his error of judgment influenced
by
use of such substances, his conduct shortly after the incident
(i.e. him run out to look for transport to take the deceased to
hospital), the period in custody awaiting trial and his personal
circumstances are substantial and compelling circumstances
justifying a deviation from the prescribed sentence.
[16]
However, having said that, the accused cannot escape a long period of
imprisonment and that sentence would
serve as a deterrent and
retributive effect. The accused is still relatively young and
deserve a second chance and hopefully
he will utilised the period in
prison to rehabilitate himself and to refrain from use of drugs so
that he could be reintegrated
to society upon completion of his
sentence. Sadly, whatever sentence I impose will not bring back
the deceased, but hopefully
it will bring closure to her family.
[17]
Accordingly, the accused is sentenced to 20
years
’
imprisonment.
N GQAMANA
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel
for the State
Adv
T Gqamane
Instructed
by
Director
of Public Prosecutions
Gqeberha
Counsel
the Defence
Adv
H Bakker
Instructed
by
Legal
Aid South Africa
Gqeberha
Heard
on
5,
6, 7, 8 and 9 February 2024
Sentence
delivered on
9
February 2024
[1]
See
S v Van Staden
[2017] ZANCHC 21
(20 March 2017).
[2]
[2014]
ZASCA 43
(31 March 2014).
[3]
1969
(2) SA 537 (A).
[4]
1975
(4) SA 855
(A) at 866.
[5]
2001
(1) SACR 469 (SCA).
[6]
2009
(1) SACR 552
(SCA).
[7]
(CC25/2018)
[2019] ZAECPHC 46 (7 August 2019).