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[2024] ZAECELLC 3
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S v Gqogqo and Another - Sentence (CC 35/2021) [2024] ZAECELLC 3 (15 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT)
Case
No: CC 35/2021
In
the matter between:
THE
STATE
and
ZUKILE
GQOGQO
Accused
1
WANDISA
WANDA TIMOTHY
Accused
2
SENTENCE
MALUSI
J:
[1]
It is my onerous task to impose an appropriate sentence after the two
accused have been convicted
of murder that was planned and in
furtherance of a common purpose, unlawful possession of a firearm and
unlawful possession of
ammunition.
[2]
Due to the nature of the offences the provisions of
sec 51(1),
relating to murder, and
sec 51(2),
relating to possession of
ammunition, of the
Criminal Law Amendment Act 105 of 1997 (the
Act)
provides for a minimum sentence of life imprisonment and
five
(5)
years’ imprisonment respectively.
[3]
The legal position when considering a sentence for an offence within
the ambit of the minimum
sentence legislation was correctly described
in the seminal judgment of
S
v Malgas
as
‘
no
longer business as usual.’
[1]
The court is no
longer given a clean slate to impose whatever sentence it deems
appropriate. The court is required to identify
and tabulate
substantial and compelling circumstances before it may depart from
the ordained sentence. These need not be
exceptional but must
be ‘
truly
convincing reasons ‘or’ weighty justification.’
[2]
[4]
Accused 1 is currently 43 years old. He was 38 old at the time
of the commission of the
offences. His highest education
qualification is standard 5. He was raised by a sister to his
grandmother. He
reportedly had a good upbringing. He is
in good health. He is single with two
(2)
minor
children: a seven
(7)
year old and five
(5)
year old.
Both minor children are in the primary care of their paternal
grandmother. They both are currently recipients
of a State
social grant. At the time of his arrest, he was self-employed
as a hawker. He was arrested on 1 December
2019.
[5]
Accused 1 had seven
(7)
previous convictions at the time he
committed the offences in this case. He started his criminal
career as a fifteen
(15)
year old committing petty offences.
He was sentenced to fines or terms of imprisonment that were wholly
suspended.
When the sentences did not have the desired effect
relatively more heavier sentences were imposed. On 24 February
2014 he
was convicted for the serious charge of attempted murder and
sentenced to seven
(7)
years’ imprisonment. He
committed the offences in this case whilst he was out on parole.
He is currently serving
a sentence for possession unlicensed firearm
and ammunition that was committed after he committed the offences in
this case.
The character painted by his previous convictions is
that of a committed criminal who is progressively committing more
serious
offences.
[6]
Mr Erasmus
, who appeared on behalf of accused 1, submitted,
correctly in my view that the personal circumstances of accused 1 do
not disclose
any substantial and compelling circumstances. He
further conceded that discretionary minimum sentences are not
disproportionate
in the circumstances. He urged the court in
the exercise of mercy to consider ordering that all the sentences run
concurrently.
[7]
Accused 2 is currently 56 years old. She was formerly an
employee of the
Department of Education
as an a
dministrative
officer
. She was promoted to be an
assistant manager
.
She resigned her employment during the year 2014. In 2015 she
started a farming enterprise. She has also been
involved in
community farming projects. She played a leadership role in
such projects providing guidance to other members
of the projects.
She has two offspring who are now both independent adults. The
eldest,
Sinakho Timothy
is currently married and staying with
her family in
King William’s Town
. The youngest,
Amthanda Mgudlwa
is working in Johannesburg where she
resides.
[8]
Accused 2 currently suffers from post-traumatic stress disorder and
depression. It was submitted
that these conditions arise from
the events on 7 June 2018. She has no previous convictions.
It was submitted she had
a good relationship with the deceased which
had intermittent challenges like any other relationship.
[9]
Mr Kilani
, who appeared on behalf of accused 2, argued that
her personal circumstances considered cumulatively qualify as
substantial and
compelling circumstances to deviate from the
discretionary minimum sentences.
[10]
Mr
Mtsila
, who appeared on behalf of the State, submitted that the
murder of the deceased was a gruesome and a horrific crime as
depicted
in the photo-album. The use of the hammer and the
stones together with the blows exclusively to the deceased’s
head
indicate a singular and direct intention to kill. It was
not hard to imagine the pain and trauma suffered by the deceased.
[11]
Mr Mtsila
argued that the accused has shown a disregard for
the privacy and dignity of the deceased whom they treated like an
object.
The two
(2)
accused had not come to terms with
the inherent wrongfulness of their actions. They showed no
sense of remorse. He
submitted that their personal
circumstances were not extra-ordinary and in fact were more
aggravating. In particular the
involvement of accused 2 in the
murder after what she herself said was a cordial and a long-standing
relationship was even more
aggravating. He submitted that the
interest of society required that violent crime be treated harshly
with severe sentences
lest the populace is tempted to take the law
into their own hands. He argued that there were no substantial
and compelling
circumstances in this case, and neither was the
discretionary minimum sentence disproportionate. He conceded,
correctly in
my view, that the sentences ought to run concurrently.
[12]
The murder in this case was heinous and cruel. An elderly and
sickly man was callously murdered in
the sanctity of his own home.
An aggravating feature is that the murder was arranged by the wife of
the deceased. She
not only let the killers into their home but
was present and actively associated as such in the gruesome murder of
her own husband.
A contract killing has always been regarded in
our law as a heinous atrocity to be severely punished. It is an
irreversible
violation of the
Constitutional
right to life of
the deceased.
[13]
Howie P
has stated the following:
“
As to the
contract killing aspect, this is unquestionably a feature that in
reported cases has been regarded as a severely aggravating
circumstance. The moral blameworthiness of the procurer,
however, must depend on the motive, and subjective state of mind
with
which a contract killer is engaged.”
[3]
This court has been
deprived of the knowledge of the motive and the subjective state of
mind of accused 2 due to the fact that she
has elected not to take
the court into her confidence.
[14]
The protection of society and the deterrence of others are important
determinants of the interests of society.
Society expects the
courts to mete out sufficiently robust sentences in cases of violent
and serious crimes. The horrific
murder was committed brazenly
in the sanctity of the deceased home. The appellate court has
stated clearly:
“
The
requirements of society demand that a premeditated, callous murder
such as the present should not be punished too leniently
lest the
administration of justice be brought into disrepute. The
punishment should not only reflect the shock and indignation
of
interested persons and of the community at large and so serve as a
just retribution for the crime but should also deter others
from
similar conduct.”
[4]
[15]
Mr
Kilani
has submitted that the personal circumstances of accused 2
constitute substantial and compelling circumstances for the court to
depart from the discretionary minimum sentences. He
particularly highlighted her age, lack of previous conviction and
ill-health.
[16]
I do not agree. Accused 2 breached the trust of the deceased in
committing the murder. In my
view the conduct of both accused
in killing the deceased amounted to abuse of an older person as
provided in
sec
30 of Older Person Act 13 of 2006
.
This is an aggravating factor as envisaged in
sec
30(4) of the aforementioned Act
.
The chronological age of accused 2 is a neutral factor. The
injuries exclusively to the head and face of the deceased
clearly
indicate a direct intention to kill on the part of the accused.
Once it was determined the accused were the perpetrators
then the
assault determined the intention and not necessarily each blow or
injury.
[5]
In my view both
accused are morally blameworthy regardless of the roles they played.
They were all acting in the furtherance
of a common purpose.
[17]
I have also considered the time accused 1 spent awaiting trial.
It has been held that factor does not,
in and of itself, constitute
substantial and compelling circumstances but is only one factor among
many to be considered.
[6]
[18]
Furthermore, I have considered whether the discretionary sentences
would be unjust or disproportionate.
I have found no basis for
such a conclusion. In my view, the murder in this case falls
into the category of the worst murders
one can imagine.
[19] I,
therefore, find the following sentences to be appropriate.
19.1
Murder
:
Both accused are
sentenced to undergo life imprisonment.
19.2
Unlawful possession of a firearm
:
Both accused are
sentenced to undergo five (5) years’ imprisonment.
19.3
Unlawful possession of ammunition
:
Both accused are
sentenced to undergo three (3) years’ imprisonment.
All the sentences are
ordered to run concurrently.
T MALUSI
JUDGE OF THE HIGH
COURT
Heard:
6-20
March 2023 , 18 July-04 August 2023 , 16-27 October 202 3 and 5,
6, 7, 12, 13 & 14 February 2024
.
Delivered:
15
February 2024
Appearances
:
For
the State:
Advocate
Mtsila
instructed by
Director
of Public Prosecutions
MAKHANDA
For
Accused 1:
Advocate
Erasmus
instructed by
Legal
Aid South Africa
KING
WILLIAM’S TOWN
For
Accused 2:
Adv
Nabela, Mr Manyisane & Advocate Kilani
instructed by
Legal
Aid South Africa
KING
WILLIAM’S TOWN
[1]
2001 (2) SA 1222
(SCA) at para 8.
[2]
Malgas
at 25 and 18.
[3]
S v
Ferreira
2004
(2) SACR 454
(SCA) at para 33.
[4]
S v Di
Blasi
1996
(1) SACR 1
(A) at 10F-G.
[5]
S v van
Aard
2009
(1) SACR 648
(SCA) at para 39.
[6]
S v
Radebe
2013
(2) SACR 165
(SCA) at para 13.