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[2023] ZAKZPHC 16
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S v Mncube (JUDGMENT ON SENTENCE) (CCP42/2021) [2023] ZAKZPHC 16 (17 February 2023)
FLYNOTES:
UBUNTU
AND MURDER SENTENCE
CRIMINAL –
Sentencing – Ubuntu – Murder conviction –
Counsel asking for ubuntu to be incorporated
in sentence –
Minimum sentencing – Accused found to be dangerous and
calculating and not showing any remorse
– No substantial or
compelling circumstances to allow sentence less than the
prescribed minimum sentence – 20
years imprisonment.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG,
NORTH
WESTERN CIRCUIT
Case
No: CCP42/2021
In
the matter between:
THE
STATE
And
MBUSO
MNCUBE
ACCUSED
JUDGMENT
ON SENTENCE
MOSSOP
J:
[1]
Yesterday,
whlle hearing argument on the question of sentence, your counsel, Mr
Madida, urged me to incorporate the principles of
ubuntu into the
sentence that I am required to pass on you. Ubuntu can loosely be
defined as a fundamental African value embracing
dignity, human
interdependence, respect, neighbourly love and concern. In
S
v Mankwanyane
,
[1]
the Constitutional Court recognised the African customary principle
of ubuntu as one of the values underpinning the Constitution
when
dealing with the question of criminal punishment. The Interim
Constitution also incorporated the concept of ubuntu from traditional
jurisprudence. In
Mankwanyane
,
[2]
six of eleven judges identified ubuntu as being a key constitutional
value that:
‘
.
. . places some emphasis on communality and on the independence and
on the interdependence of the members of a community. It recognises
a
person’s status as a human being entitled to unconditional
respect, dignity value and acceptance . . . The person has a
corresponding duty to give the same. . . ’
[2]
The Constitutional Court has made several
allusions to ubuntu being one of the core constitutional values of
human dignity, equality
and freedom. Though ubuntu is not
specifically mentioned in the final Constitution, it remains part of
our jurisprudence.
In
Port
Elizabeth Municipality v Various Occupiers
,
[3]
Sachs J said:
‘
The
spirit of ubuntu, part of the deep cultural heritage of the majority
of the population, suffuses the whole constitutional order.
It
combines individual rights with a communitarian philosophy. It is a
unifying motif of the Bill of Rights, which is nothing if
not a
structured, institutionalised and operational declaration in our
evolving new society of the needs for human interdependence,
respect
and concern.’
[3]
I am an enthusiastic proponent of the
concept of ubuntu and I shall attempt to ensure that it is reflected
in the sentence I now
impose and in my reasons for that sentence.
However, making reference to ubuntu and considering its foundational
principles and
philosophies also has the startling effect of bringing
home to me how very far you have fallen from that very philosophy and
how
lacking in compassion and mercy your conduct in this matter is.
You seek compassion and mercy from this court, but you showed none
of
that to the deceased. Nonetheless, I proceed on the basis that we are
all human beings, none of us is perfect and errors are
made by all of
us. It appears, however, that you make more errors than most people
and do not appear to learn from the errors that
you do make.
[4]
You will agree with me that the crime that
you committed is extremely serious. It is difficult to conceive of a
more serious offence
then the murder of another citizen. As Mr
Sokhela stated in his argument, in the not-too-distant past it
was possible for
a sentence of death to be imposed upon someone found
guilty of the murder of another citizen. That demonstrates to you how
serious
this offence is regarded by the law. Thankfully, we no longer
have the death penalty and so another form of sentence needs to take
its place. It is my duty to assess what that sentence should be.
[5]
I am guided in this task by legislation
passed by the National Assembly which requires certain minimum
sentences to be imposed for
certain offences. You acknowledged at the
commencement of this trial that you were aware of the existence of
such minimum sentences.
The offence for which you have been convicted
falls within the second part of schedule 2 to the piece of
legislation that is known
as the Criminal Law Amendment Act 105 of
1997 (the Act). Section 51(2) of the Act prescribes that offences
that fall within the
second part of schedule 2 shall attract a
minimum sentence of 15 years imprisonment. The State urges me to
impose that sentence,
plus an additional five years’
imprisonment. Your counsel seeks a sentence less than 15 years.
[6]
I am not compelled to impose the minimum
sentence referred to by the Act. I can impose a lesser sentence if I
am satisfied that
substantial and compelling circumstances exist
which justify the imposition of a lesser sentence. As Mr Madida
correctly pointed
out, the Act does not define what ‘substantial
and compelling’ circumstances are. This is left to the courts
to determine.
[7]
Other
courts have over the years considered what ‘substantial and
compelling circumstances’ may mean. A leading case
that is
often referred to when it comes to minimum sentences is the matter of
S
v Malgas
.
[4]
Indeed, it was referred to by both Mr Sokhela and Mr Madida when they
addressed me on sentence yesterday. The Judge who delivered
the
judgment in
Malgas
,
Appeal Judge Marais, said that it is incorrect to hold the view that
for
circumstances to qualify as substantial and compelling they must be
‘exceptional’ in the sense of being seldom encountered
or
rarely encountered. He said that whatever nuances of meaning may lurk
in those words, their central thrust seems obvious. The
specified
minimum sentences are not to be departed from lightly and for flimsy
reasons which cannot withstand scrutiny. Speculative
theories
favourable to the accused person, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the
efficacy of
the policy of minimum sentences, and like considerations are
obviously not intended to qualify as substantial and compelling
circumstances. But there is no reason to conclude that the
legislature intended a court to exclude from consideration, any or
all of the many factors traditionally and rightly taken into account
by courts when sentencing offenders.
[8]
That same Judge, however, went on to state
that
courts are
required to approach the imposition of sentence conscious of the fact
that the Legislature has ordained the particular
prescribed period of
imprisonment as being the sentence that should ordinarily and
in the absence of weighty justification
be imposed for the listed
crimes in the specified circumstances.
[9]
In
my view, it is important when considering the appropriateness of the
sentence to be imposed upon you not to start with the mindset
that
the minimum sentence is a just sentence. All the circumstances of the
case must be identified, considered and evaluated and
then it should
be considered whether the sentence is disproportionate to the crime,
the offence and the legitimate needs of the
community. That will
require the court to consider what a just sentence would be in all
the circumstances of the case. If a just
sentence falls materially
below the prescribed sentence there will be substantial and
compelling circumstances to depart from the
prescribed sentence.
[5]
[10]
I have considered the facts of the case.
Your conduct was reprehensible in committing the crime. Your
demeanour in court is scarcely
any better. You have singlehandedly
through your conduct inflicted severe wounds on two families.
Firstly, to your own family.
You have lied about their conduct and
have unfairly sought to blame those family members who helped you.
Secondly, to the deceased’s
family. Ms Buthelezi, who raised
the deceased from the age of 9 months, was reduced to anguished,
racking sobs when she testified
in aggravation of sentence,
explaining what your conduct has done to their family. It was most
distressing to observe. It did not
appear to affect you in the
slightest.
[11]
There can be no doubt that you are only
motivated by your own interests and that you will do anything, and
say anything, to preserve
those interests. You appear to have a
rather distorted view of your own importance. You at one stage in
your evidence equated yourself
to Jesus Christ.
[12]
Mr
Madida submitted that you are youthful and immature. I do not find
you to be either. I find you to be dangerous and calculating.
You
have not demonstrated a single iota of remorse for your conduct. Mr
Sokhela referred me to the matter of
S
v Matyityi
[6]
during his address on sentence. In that matter, Appeal Judge Ponnan
had the following to say on this issue of remorse:
‘
There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition
can
only come from an appreciation and acknowledgement of the extent of
one’s error. Whether the offender is sincerely remorseful,
and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the surrounding actions
of
the accused, rather than what he says in court, that one should
rather look. In order for the remorse to be a valid consideration,
the penitence must be sincere and the accused must take the court
fully into his or her confidence. Until and unless that happens,
the
genuineness of the contrition alleged to exist cannot be determined.
After all, before a court can find that an accused person
is
genuinely remorseful, it needs to have a proper appreciation of,
inter alia: what motivated the accused to commit the deed;
what has
since provoked his or her change of heart; and whether he or she does
indeed have a true appreciation of the consequences
of those
actions.’ (Footnotes omitted)
[13]
I have no idea what motivated you to commit
the offence for which you have been convicted. You have not taken the
court into your
confidence in this regard. On this score, Mr Madida
submitted that you ‘appreciate’ the consequences of the
offence
for which you have been convicted and that you ‘appreciate’
the trauma that the deceased’s family have been put
to. That
does not cut the mustard when it comes to remorse and contrition. You
are not a fool: you, of course know what happens
to people who kill
other people and get caught and what happens to the grieving family
of the deceased person. The fact that you
intellectually ‘appreciate’
those consequences does not in any way establish any remorse on your
part for being the
cause of those consequences.
[14]
I have considered your personal
circumstances. You have not had a privileged upbringing and you do
not have an impressive or lengthy
educational record. You are the
father of a young child. It is ironic that the mother, who you
branded as an unmitigated liar,
has raised your son and will
presumably have to continue to do so as a consequence of the sentence
now to be imposed upon you.
In my book, it takes a special type of
person to call his mother a liar in a public forum, such as in a
court. You are that type
of person. I am unpersuaded that there are
any substantial or compelling circumstances that will allow me to
impose a sentence
less than the prescribed minimum sentence.
[15]
You have not learned from your previous
brushes with the law. You must, unfortunately, now be made to learn.
Given the seriousness
of the offence, a long term of imprisonment is
the only realistic sentence in the circumstances. The only issue is
the length of
the sentence. The State has called for a sentence of 20
years. I ordinarily would have thought that was a bit light in the
circumstances,
given the enormity of your crime. Certainly, a
sentence that falls below the minimum sentence or the minimum
sentence itself would
not be a just sentence considering the facts of
this matter.
I
would have thought that 25 years would be the appropriate sentence.
But, upon reflection, it appears to me that 20 years’
imprisonment might be adequate when cognisance is taken of the fact
that you have been in custody since 4 August 2020, a period
of 2,5
years.
[16]
In the circumstances, after consideration
of the competing interests in the matter, I sentence you as follows:
1.
You are sentenced to 20 years imprisonment
on count 7;
2.
I make no determination in terms of
section
103(1)
of the
Firearms Control Act 60 of 2000
. You are therefore
declared unfit to possess a firearm.
MOSSOP
J
APPEARANCES
Counsel for the State:
Mr. S Sokhela
Instructed
by:
: Director of Public
Prosecutions
Pietermaritzburg
Counsel for the accused
: Mr P. M. Madida
Instructed
by
: Legal Aid
Newcastle
Dates of Hearing : 17
to 20 January 2023; 23 to 27 January 2023;
30 to 3 February 2023; 6
February to 10 February 2023;
13
February 2023; 16 February 2023
Date
of Judgment : 17 February 2023
[1]
1995
(3) SA 391 (CC).
[2]
Para
224.
[3]
[2004] ZACC 7
;
2005
(1) SA 217
(CC) para 30.
[4]
S
v Malgas
2001 (2) SA 1222 (SCA).
[5]
S
v GK
2013 (2) SACR 505
(WCC) para 14.
[6]
S
v Matyityi
2011
(1) SACR 40
(SCA).