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[2023] ZAKZPHC 128
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S v Magwanyana (Sentence) (CC14/2021P) [2023] ZAKZPHC 128 (3 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number: CC14/2021P
In
the matter between:
THE
STATE
and
SENZO
JEFFREY
MAGWANYANA
ACCUSED
Coram
:
Mossop J
Heard
:
23, 24, 25, 26, 30, 31 October 2023, 1, 2, 3 November 2023
Delivered
:
3 November 2023
JUDGMENT ON SENTENCE
Mossop
J
:
[1]
The sad events that we have learned of as
the facts of this trial have been disclosed makes it plain that two
human lives have needlessly
been wasted. The obvious needless waste
of a life is the lost life of the deceased. His was killed for money
that ultimately you
could not use because it became stained with ink.
The second life that is to be wasted is yours. Whatever
personal potential
that you had is to be squandered by your
incarceration for these very serious offences. A tragedy has become a
double tragedy.
[2]
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 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. In respect of
attempted murder, the sentence to be imposed is 5 years’
imprisonment.
[3]
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.
[4]
You have submitted through Mr Tengwa the
details of your life and he has submitted that those facts constitute
proof of substantial
and compelling circumstances that entitle this
court to avoid imposing the prescribed minimum sentences.
[5]
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 today when submissions were made by Mr Tengwa
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]
[6]
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.
[7]
From Malgas, I
therefore deduce that your personal circumstances may be taken into
account when determining whether the minimum
sentences should be
imposed or not and that they may constitute substantial and
compelling circumstances that may allow you to
avoid those prescribed
minimum sentences.
[8]
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]
[9]
I have listened carefully to what Mr Tengwa
has submitted regarding your personal circumstances. You are 42 years
young, unmarried,
but a father of seven children ranging in age from
23 years to 11 years. You have a fiancée with whom you have
three children
and you support her and all your children. This you
previously did with an income of R4 000 per month earned from your
employment,
ironically, as a security guard. Having lost that
employment, you claim to earn an income from selling traditional
herbs from which
activity you earn R3 000 per month.
[10]
The biggest factor that counts in your
favour is that you are a first time criminal offender. It is,
however, unfortunate for you
that you commenced your criminal career
with the most serious criminal offence that you could commit.
[11]
Mr Tengwa very correctly acknowledged the
seriousness of what you have been convicted of when he addressed me
in mitigation. You
would have heard him call upon me to display some
mercy towards you when sentencing you. The dictionary definition of
mercy is:
‘
c
ompassion
or forbearance shown especially to an offender or to one subject to
one's power.’
[4]
In my view, mercy should
have a place, and be evident, in every sentence imposed by a court. 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. You
have admitted no wrongdoing.
You are entitled to adopt that position. You are an intelligent man
and you will then realise that the room for mercy in the light
of the
position that you have adopted is very constrained. I shall,
nonetheless, strive to blend an element of mercy into the sentences
that I am required to impose upon you.
[12]
But even as I strive to be merciful, I
would be failing in my duty if I did not acknowledge that society is
repulsed by the rampant
crime in our country. There is simply too
much unnecessary, violent crime in our society. What you did is a
prime example of a
senseless, violent crime, a fact rightly
acknowledged by Mr Tengwa. As he stated, there was simply no reason
to kill the deceased,
yet you did so swiftly, unfeelingly and without
any compunction. You executed him as if he was undeserving of living
further. Human
life is no longer viewed as being sacrosanct. You must
hold that view judging by your actions. Human life is routinely taken
by
those who seek to avoid the consequences of their unlawful
conduct. You did exactly that. Those who act in this fashion very
often
evade detection and arrest. You did not. When wrongdoers are
actually apprehended, the community needs the reassurance of
appropriate
sentences being imposed upon those who will not obey the
law.
[13]
Having heard of your personal
circumstances, I regret that there is nothing to be found in them
that constitutes substantial and
compelling circumstances that would
merit the avoidance of the minimum sentences relied upon by the
State.
I
n
my view, the minimum sentences prescribed by the Act, and called for
by the State, would be just sentences in the particular circumstances
of this matter. For you cold bloodedly executed the deceased from
behind by discharging a bullet into his head. He posed no threat
to
you and as Ms Sokhela pointed out in her address to me on sentence,
the deceased had already relinquished his grip on the tribus,
which
was now under the gang’s control.
[14]
You have not impressed me as a man nor as a
member of the human race. While you personally seek mercy, you were
not prepared to
show any to the deceased.
[15]
Ms
Sokhela indicated in her address that you had displayed no remorse.
She is correct. Because of the basis of your false defence
it is not
possible for me 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
[5]
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.’
[6]
(Footnotes omitted)
[16]
I assume, without knowing definitely, that
what motivated you and the others with whom you ganged up, was greed.
Your goal was to
take the money but you were prepared to kill to
achieve that goal. Disgustingly, and to your everlasting shame, you
were prepared
to even kill school children if that meant you could
escape with the money. I wonder how you would feel if someone shot
one of
your children while committing a criminal act? In the
circumstances, I cannot find that you are remorseful or that you have
have
acknowledged the error of your ways.
[17]
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.
[18]
Having considered all the relevant factors,
including the representations made to me by Mr Tengwa 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:
1.
Count 1
Robbery
with aggravating circumstances:
15
years’ imprisonment;
2.
Count 2
Murder:
Life
imprisonment;
3.
Count 3
Attempted
murder:
5
years’ imprisonment;
4.
Count 4
Attempted
murder:
5
years’ imprisonment;
5.
Count 5
Attempted
murder:
5
years’ imprisonment.
6.
The sentences imposed on counts 1, 3, 4 and
5 will run concurrently with the sentence imposed on count 2 in terms
of the provisions
of
section 280(2)
of the
Criminal Procedure Act 51
of 1977
.
7.
No order is made in terms of the provisions
of
section 103(1)
of the
Firearms Control Act, 60 of 2000
.
MOSSOP
J
APPEARANCES
Counsel
for the State:
Ms Z
Sokhela
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
Counsel
for accused:
Mr M
Tengwa
Instructed
by:
Legal
Aid
Pietermaritzburg
Dates
of trial:
23,
24, 25, 26, 30, 31 October 2023, 1, 2, 3 November 2023
Date
of judgment:
3
November 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]
Merriam-Webster Online Dictionary:
https://www.merriam-webster.com/dictionary/mercy.
[5]
S
v Matyityi
2011
(1) SACR 40 (SCA).
[6]
Ibid, para 13.