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[2023] ZAKZPHC 115
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S v Hlongwa and Others (Sentence) (CC76/2022P) [2023] ZAKZPHC 115 (18 October 2023)
FLYNOTES:
CRIMINAL – Sentence –
Personal
circumstances
–
Murder,
attempted murder, kidnapping and robbery aggravating –
Unfortunate circumstances, lack of education and poverty
largely
the norm – Nothing substantial and compelling in those life
experiences that would merit avoidance of minimum
sentences –
Because of defences falsely raised it is not possible to find that
they are remorseful for conduct –
Life imposed for murder
and 15 years for robbery with aggravating circumstances.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number: CC76/2022P
In
the matter between:
THE
STATE
and
LINDANI
THEOPHILUS HLONGWA
FIRST ACCUSED
FANELE
DLOMO
SECOND ACCUSED
MLUNGISI
INNOCENT
BAXTER
THIRD ACCUSED
Coram
:
Mossop J
Heard
:
2, 3, 4, 5, 6, 11, 12, 16, 17, 18 October 2023
Delivered
:
18 October 2023
JUDGMENT ON SENTENCE
Mossop
J
:
[1]
The boot of a motor vehicle is intended to
accommodate goods and objects. It thus has no windows and permits of
no ventilation.
It is not intended to accommodate human beings. Mr
Osama Mohamed Zaky Taha Elbitawu (the deceased) had a terrible death.
He was
squashed into the boot of his motor vehicle together with his
companion, Mr Shaker Samieer (Mr Samieer). There could not have been
much room for two adult men in that confined space as a Toyota
Corolla is not a particularly big motor vehicle. It would have been
hot in the boot because of the men’s body heat and because of
their exhaled breath and there would not have been any fresh
air for
them to breath in. The deceased would undoubtedly have been
terrified. He did not know how the nightmare that he was experiencing
would end. He may have believed that these were his final moments on
this earth. If he did, he, unfortunately, was correct. For
he was
taken from the vehicle and executed by you by being shot in the head
and he died as a consequence.
[2]
The experience for Mr Samieer would have
been no less terrifying. He was taken from the boot and stabbed in
the back and then shot
in the stomach. It is a wonder that he is
still alive, for the intent by the three of you was to make sure that
he died so that
there would be no one to identify you.
[3]
I do not know which of you did what. But as
Ms Franklin conceded yesterday, it does not really matter what each
of you did because
I have found that a common purpose existed between
you to carry out this vile plan. I found that all three of you were
involved
in the events tried before me. That there was a common
purpose is further revealed by the fact that if the person who was
shot
by Mr Samieer when he struggled with the man who had shot him is
the person who stopped the motor vehicle, then the person who stabbed
Mr Samieer and the person who shot him, assuming that the person who
had the firearm did not also have the knife, have to have
been
accused 2 and accused 3. In other words, all three of you had some
part to play in the terrible events that occurred in the
plantation
on the evening of 15 July 2022. This is simply further evidence of
your common purpose and that all three of you were
committed to the
furtherance of that common purpose.
[4]
The State indicated at the commencement of
the trial that it sought the imposition of certain minimum sentences
upon you. You stated
that you understood this. The minimum sentences
are prescribed by the provisions of the Criminal Law Amendment Act
105 of 1997
(the Act) and the schedules attached thereto. In respect
of murder, the minimum sentence prescribed is life imprisonment where
the death of the victim was occasioned by the accused while
committing, or attempting to commit, the offence of robbery with
aggravating
circumstances or where the death of the victim was caused
by a group of persons acting in the execution of a common purpose. In
respect of robbery with aggravating circumstances, the minimum
sentence prescribed is imprisonment for 15 years for a first offender
and 20 years’ imprisonment for a second offender.
[5]
While the State continues to ask for the
imposition of the minimum sentences upon you, I indicate to you that
I am not compelled
to impose those minimum sentences. I am
entitled to impose a lesser, shorter sentence if I am satisfied that
substantial
and compelling circumstances exist which justify the
imposition of such a lesser sentence.
[6]
Each of you has submitted through your
respective legal representative that the details of your upbringing
and your life constitute
proof of substantial and compelling
circumstances that entitle this court to avoid imposing the
prescribed minimum sentences.
[7]
What
are substantial and compelling circumstances? The Act does not define
what they are. This is left to the courts to determine.
A leading
case on this issue that is often referred to, indeed, it was referred
to yesterday when submissions were made by your
legal representatives
on sentence, is the matter of
S
v Malgas
.
[1]
It is necessary to quote from that judgment at some length. The court
stated, with regard to the words ‘substantial and compelling’
that:
‘
Whatever
nuances of meaning may lurk in those words, their central thrust
seems obvious. The specified sentences were not to be
departed from
lightly and for flimsy reasons which could not withstand scrutiny.
Speculative hypotheses favourable to the offender,
maudlin sympathy,
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy implicit in the amending
legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances.
Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions,
might have justified
differentiating between them. But for the rest I can see no warrant
for deducing that the legislature intended
a court to exclude from
consideration,
ante
omnia
as
it were, any or all of the many factors traditionally and rightly
taken into account by courts when sentencing offenders.
The use of
the epithets “substantial” and “compelling”
cannot be interpreted as excluding
even
from
consideration
any
of those factors. They are neither notionally nor linguistically
appropriate to achieve that. What they are apt to convey,
is that the
ultimate cumulative
impact
of
those circumstances must be such as to
justify
a
departure. It is axiomatic in the normal process of sentencing that,
while each of a number of mitigating factors when viewed
in isolation
may have little persuasive force, their combined impact may be
considerable. Parliament cannot have been ignorant
of that.’
[2]
[8]
The court in
Malgas
went on to state that
courts
are required to approach the imposition of sentences conscious of the
fact that the Legislature has ordained the particular
prescribed
period of imprisonment should be the sentence that is ordinarily
imposed. In the absence of any other persuasive, weighty
factors that
may properly be considered, the minimum sentence should therefore be
imposed.
[9]
So
your personal circumstances may be taken into account when
determining whether the minimum sentences should be imposed or not
and they may constitute substantial and compelling circumstances that
may allow you to escape those prescribed minimum sentences.
Before
considering what was said on your behalf regarding your personal
circumstances, it is important, in my view, when considering
the
appropriateness of the sentence to be imposed upon you, not to start
with the mind-set that the minimum sentence that is prescribed
is
also 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.
[3]
[10]
I have listened carefully to what your
respective legal representatives have submitted regarding your
personal circumstances:
(a)
Accused 1, Mr Hlongwa, you are 42 years of
age. You reached grade 10 at school. You were raised by your mother
and your brother
has predeceased you. You have earned a living in the
Greytown area as a brush cutter and gardener. You earned
approximately R2
200 per week from these endeavours. While your
income was modest, your genetic output was not as you are the father
of 9 children
whose ages range from 6 to 17 years. You have been in
custody since 19 July 2022. You have a lengthy criminal history. It
commenced
in 2003 with an assault conviction, progressed to a robbery
conviction in 2011, then followed several convictions for possession
of drugs in 2015 and 2016 and then a final assault conviction in
2017. All these convictions, save for the two drugs convictions,
are
relevant considerations and will have to be brought into the
reckoning when formulating an appropriate sentence for you. In
the
past, you were treated lightly by the law: you never received a
prison sentence but were either fined or received a suspended
sentence. I am afraid that will come to an end today;
(b)
Accused 2, Mr Dlomo, you are 23 years of
age. You also passed grade 10 before you left the educational system.
You were raised by
your grandmother, your father having died in 2008
and your mother having relocated to Johannesburg. You are single but
have a child
aged 3 years. You have no previous convictions; and
(c)
Accused 3, Mr Baxter, you are 41 years old.
Your educational career ended in grade 8. You are single but have six
children whose
ages range from 1 year to 18 years. You were
self-employed and earned approximately R3,500 per month. You have a
single criminal
conviction which occurred 24 years ago and which
involved the offence of using a motor vehicle without the owner’s
consent.
Unlike your co-accused, you advanced a version under oath in
which you admitted your presence at the scene of the crime. You,
however,
denied any voluntary participation in the criminal
activities that then occurred but I am left with the residual feeling
that your
evidence was intended to explain away your palm print and
not an attempt to take the court into your confidence.
[11]
From what your legal representatives have
said to me, I think it is fair to deduce that none of you have had an
easy life. But there
are millions of people in this country who have
been born into unfortunate circumstances and who have struggled to
make their way
in life who have not broken the law.
[12]
Mr
Stuurman, who appears for accused 2, submitted that a mitigatory
feature that ought to be considered is the youthfulness of accused
2,
Mr Dlomo, whom he represents. Mr Dlomo, it is true that you are
substantially younger than the other two accused with whom you
share
the dock. It is so that Mr Stuurman, in the same breath that he used
to make the submission, withdrew it. The reason for
doing so, so he
explained, was the existence of
S
v Mabuza and others
.
[4]
In my view, any factor that may possibly and legitimately justify the
imposition of a sentence other than the prescribed minimum
sentence
must be investigated and I accordingly continue to consider whether
there is any merit in that submission notwithstanding
that it was
withdrawn.
[13]
In
Mabuza
,
there were three appellants aged 20, 19 and 18 respectively. They
were thus younger than you Mr Dlomo. The Supreme Court of Appeal
stated that:
‘
Youthfulness
almost always affects the moral culpability of juvenile accused. This
is because young people often do not possess
the maturity of adults
and are therefore not in the same position to assess the consequences
of their actions. They are also susceptible
to peer pressure and
adult influence and are vulnerable when proper adult guidance is
lacking. There is therefore compelling justification
for the view
that youthfulness, at least before the advent of the minimum
sentencing regime, was
per
se
a
factor mitigating sentence.’
[5]
[14]
But the court went on to note that the
institution of the minimum sentence legislation indicated that the
Legislature intended that
youthfulness should no longer be regarded
as a mitigating factor per se. The court stated that:
‘
So
while youthfulness is, in the case of juveniles who have attained the
age of 18, no longer
per se
a substantial and
compelling factor justifying a departure from the prescribed
sentence, it often will be, particularly when other
factors are
present. A court cannot, therefore, lawfully discharge its sentencing
function by disregarding the youthfulness of
an offender in deciding
on an appropriate sentence, especially when imposing a sentence of
life imprisonment, for in doing so it
would deny the youthful
offender the human dignity to be considered capable of redemption.’
[15]
I must, therefore, consider your age and
determine whether that constitutes sufficient justification for me to
depart from imposing
the minimum sentence. It appears
that
there are
degrees of maturity. The, younger the accused person, the less mature
he or she is likely to be.
[6]
Mabuza
focussed on juveniles – so much is evident from the extract to
which I have just referred. You, however, are not a juvenile.
You are
a young adult. You have embraced an adult lifestyle because you have
fathered a child. You have an education of sorts and
it is safe to
assume that you know what is right and what is not right. You would
have learnt that crime is wrong at school, if
not at home. According
to the State witness Mr Zakwe, you worked with him at the
municipality. I know very little about you, but
what I do know
indicates that you conduct yourself as an adult. Mr Khathi indicated
in his argument on sentence that it has not
been suggested that you
were influenced by your co-accused to do what you did. That is
correct, but you could not make such an
allegation because your
version, falsely advanced, was that you were not there.
[16]
Ms Citera in her address to me yesterday
pleaded for mercy for her client, accused 3. The dictionary
definition of mercy is:
‘
c
ompassion
or forbearance shown especially to an offender or to one subject to
one's power.’
[7]
You
are offenders and the law has subjected you to the powers with which
I have been endowed.
In my view, mercy should have a
place, and be evident, in every sentence imposed by a court. I agree
with the words of Abraham Lincoln
when he said:
‘
I
have always found that mercy bears richer fruits than strict
justice.’
I
point out, however, that it is easier for a court to be merciful
where wrongdoing has been admitted. It is less easy to be merciful
where this has not occurred. None of you have admitted any
wrongdoing.
Despite
your failure to do so, I shall strive to blend an element of mercy
into the sentences that I am required to impose upon
you.
[17]
But even as I strive to be merciful, I
would be failing in my duty if I did not acknowledge that society is
sick and tired of the
rampant crime in our country. There is a
general lawlessness afoot in the country. Human life is no longer
viewed as being sacrosanct.
Human life is routinely taken by those
who seek to avoid the consequences of their unlawful conduct. Those
wrongdoers very often
evade detection and arrest. When wrongdoers are
actually apprehended, the community needs the reassurance of
appropriate sentences
being imposed upon those who will not obey the
law.
[18]
When considering your personal
circumstances, it appears to me that there are common features in all
of your backgrounds. None of
you have persevered in your educational
careers. None of you earn a liveable wage and none of you are married
but you are all fathers
of children. Unfortunately, your personal
circumstances appear to be the norm in our present unequal society.
The mere fact that
there are these common themes demonstrate that
your lived experience is, largely, the norm. There is therefore
nothing substantial
and compelling in those life experiences that
would merit the avoidance of the minimum sentences relied upon by the
State.
Insofar
as Mr Dlomo is concerned, I have considered your relative
youthfulness but have come to the conclusion that it does not
constitute sufficient grounds for me to depart from the minimum
sentences.
And, in my view, the
minimum sentences prescribed would be just sentences in the
particular circumstances of this matter. Accordingly,
after
reflection, I cannot find that there are any substantial or
compelling circumstances that justify the prescribed minimum
sentences to be departed from.
[19]
During
the course of my interaction with your legal representatives when
they addressed me on sentence yesterday, I indicated that
because of
the defences that you have falsely raised it is not possible to find
that you are remorseful for your conduct. Remorse
is a hopeful sign
that there is a redeemable quality in the person that exhibits it.
While you may now perhaps regret your conduct,
as Ponnan JA stated in
S
v Matyityi
[8]
there is:
‘…
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.’
[9]
(Footnotes
omitted)
[20]
I have no idea what motivated you to commit
the offences for which you have been convicted. I am inclined to
believe that it was
simply greed in the absence of any explanation.
You have not taken the court into your confidence in this regard.
Because of this
I cannot find that any of you are remorseful or have
acknowledged the error of your ways.
[21]
At the commencement of this judgment I
referred to the horror that your victims must have felt when placed
in the boot of the Toyota
Corolla. You are the persons responsible
for that. You need to acknowledge that and reflect upon that. If you
have a conscience,
it will be plagued by that knowledge for the rest
of your days. While I intend imprisoning your bodies, your minds will
forever
be imprisoned with the knowledge of your own capacity for
wickedness.
[22]
In sentencing you, I must be mindful of the
fact that multiple sentences must shortly be imposed upon you and I
must insure that
that the cumulative burden of those sentences should
not operate unfairly upon you.
[23]
I am of the view that because of your
different criminal histories, I should treat accused 1 differently to
accused 2 and 3, where
possible. While accused 2 has no prior
criminal convictions, I intend treating accused 3 as a first offender
because of the age
of his only criminal conviction. Having considered
all the relevant factors, including the representations made to me by
your legal
representatives on your behalf, the nature of the offenses
that you committed and the demands of society as a whole, I am
satisfied
that the following are appropriate sentences for each of
you:
1.
Accused 1
:
(a)
Counts 1 and 2 (kidnapping)
:
Each of these counts are
taken as one for the purpose of sentence and you are sentenced to 4
years’ imprisonment.
(b)
Count 3 (murder)
:
You are sentenced to life
imprisonment.
(c)
Count 4 (attempted murder)
:
You are sentenced to 15
years’ imprisonment;
(d)
Count 5 (robbery with aggravating
circumstances):
You are sentenced to 15
years’ imprisonment.
(e)
The sentences imposed on counts 1, 2, 4 and
5 will run concurrently with the sentence imposed on count 3 in terms
of the provisions
of section 280(2) of the Criminal Procedure Act 51
of 1977.
(f)
No order is made in respect of accused 1 in
terms of the provisions of
section 103(1)
of the
Firearms Control
Act, 60 of 2000
.
2.
Accused 2
:
(a)
Counts 1 and 2 (kidnapping)
:
Each of these counts are
taken as one for the purpose of sentence and you are sentenced to 3
years’ imprisonment.
(b)
Count 3 (murder)
:
You
are sentenced to life imprisonment.
(c)
Count 4 (attempted murder)
:
You are sentenced to 12
years’ imprisonment;
(d)
Count 5 (robbery with aggravating
circumstances)
:
You are sentenced to 15
years’ imprisonment.
(e)
The sentences imposed on counts 1, 2, 4 and
5 will run concurrently with the sentence imposed on count 3 in terms
of the provisions
of section 280(2) of the Criminal Procedure Act 51
of 1977.
(f)
No order is made in respect of accused 2 in
terms of the provisions of
section 103(1)
of the
Firearms Control
Act, 60 of 2000
.
3.
Accused 3
:
(a)
Counts 1 and 2 (kidnapping)
:
Each of these counts are
taken as one for the purpose of sentence and you are sentenced to 3
years’ imprisonment.
(b)
Count 3 (murder)
:
You
are sentenced to life imprisonment.
(c)
Count 4 (attempted murder)
:
You are sentenced to 12
years’ imprisonment;
(d)
Count 5 (robbery with aggravating
circumstances)
:
You are sentenced to 15
years’ imprisonment.
(e)
The sentences imposed on counts 1, 2, 4 and
5 will run concurrently with the sentence imposed on count 3 in terms
of the provisions
of section 280(2) of the Criminal Procedure Act 51
of 1977.
(f)
No order is made in respect of accused 3 in
terms of the provisions of
section 103(1)
of the
Firearms Control
Act, 60 of 2000
.
_______________________
MOSSOP
J
APPEARANCES
Counsel
for the State
: Mr J
Khathi
Instructed
by
:
Director of Public Prosecutions
Pietermaritzburg
Counsel
for accused 1
:
Ms
D S Franklin
Instructed
by
: Legal Aid
Pietermaritzburg
Counsel
for accused 2
:
Mr R
Stuurman
Instructed
by
:
Legal Aid
Pietermaritzburg
Counsel
for accused 3
: Ms T M
Citera
Instructed
by
: Legal
Aid
Pietermaritzburg
Dates
of trial
:
2, 3, 4, 5, 6, 11, 12, 16, 17, 18 October 2023
Date
of judgment on sentence
:
18
October 2023
[1]
S
v Malgas
2001 (2) SA 1222 (SCA).
[2]
Ibid, para 9.
[3]
S
v GK
2013 (2) SACR 505
(WCC) para 14.
[4]
S
v Mabuza and others
(174/01)
[2007] ZASCA 110; [2007] SCA 110 (RSA) (20 September 2007).
[5]
Ibid, para 22.
[6]
S
v Lehnberg
1975
(4) SA 553
(A).
[7]
Merriam-Webster Online Dictionary:
https://www.merriam-webster.com/dictionary/mercy.
[8]
S
v Matyityi
2011
(1) SACR 40 (SCA).
[9]
Ibid, para 13.