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[2024] ZAKZPHC 20
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S v Phakathi and Others (judgment on sentence) (CCD52/2021) [2024] ZAKZPHC 20 (18 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, NORTH EASTERN CIRCUIT
Case
no:
CCD52/2021
In
the matter between:
THE
STATE
and
SMANGA
PHAKATHI
FIRST ACCUSED
SIPHO
RICHARD
MTHEMBU
SECOND ACCUSED
SIBONELO
MABOSI SIHLONGONYENE
THIRD ACCUSED
JUDGMENT
ON SENTENCE
MOSSOP
J
:
[1]
Anyone who heard the evidence of Ms Adele Mathews on Friday, led by
the
state in aggravation of sentence, would have been moved by what
she said. Her evidence was tangibly suffused with anguish and pain.
That anguish and pain was directly caused by what the three of you
did. In her own words, her world was turned ‘upside down’
when her husband, Mr Shaun Mathews, died because of your decision to
attempt a robbery at the Pongola Rugby Club on 6 March 2020.
As a
consequence, she lost first her husband and life companion, then her
means of support, then her own employment and then her
children as
she was forced to move away from Pongola to try and pull herself
together and get a job to gain income to support her
family. Her
life, and the lives of her three young children, went into a downward
spiral that continues even to this day, four
years after the events
at the Pongola Rugby Club. She is now forced to live in Springs,
Gauteng, relying on a friend for her accommodation
and her three
children are being raised by her mother in law in Pongola because of
her inability to find employment and her lack
of finances. It is a
tragedy.
[2]
Murder, without fail, brings tragedy. There are always people who
suffer
when the life of a loved one is unlawfully and unexpectedly
taken. The chilling thing about this is that there appears to be no
way of guarding against it happening. The only thing that one can do
is live one’s life the best as one can, do right by
others,
obey the law and hope that our fellow man will do so as well. That
hope, unfortunately, was not realised in this instance.
You decided
that the laws that most people observe and obey did not apply to you.
[3]
But the tragedy does not exist only in respect of the death of Mr
Mathews.
One of your own number, Mr Xolani Mtshali (the deceased),
also lost his life. His family will no doubt find themselves in a
similar
void that Ms Mathews is now fighting her way through. His
family will have felt similar anguish to that felt by Ms Mathews. His
parents are as innocent as Ms Mathews is. The only difference is that
the deceased went to the rugby club to rob those members
of the
public there, relaxing at the end of the working week.
[4]
And the tragedy does not end there, but ripples outwards beyond the
death
of these two persons. It extends to you as well. The most
valuable thing that a person can ever possess is his or her life.
Human
beings get only one of them, ignoring for a moment those that
believe in reincarnation. It is a tragedy that you chose to act in
a
way that caused the two men who died to lose their lives. But it is
also a tragedy that you have chosen to waste your life, your
most
precious gift. For the consequence of your actions is that you are to
be punished and that punishment will deny you the opportunity
to live
your life to its full potential. You are going to moulder in a
prison. You will lose the ability to decide what you want
to do and
when you would like to do it. Instead, you will have other people
decide what you must do. Whatever potential that you
may have had
will be restricted by your circumstances. Accused one said during the
course of his evidence that he was able to testify
as he was doing
because he was now ‘free’. He actually was not free when
he said that. He is not free now. Neither
are accused two and three.
You will not be free for the greater portion of your lives. Confining
the three of you to prison is
a waste of human potential but it must
happen to protect society and to drive it home to you that your
conduct is unacceptable.
[5]
The
imposition of sentence is always a difficult task. It is not easy to
punish another living, breathing person and thereby permanently
change the course of their life. For it must be acknowledged that we
are all human beings, and we all err. Our common humanity
must always
be acknowledged. The legal system has acknowledged this common
humanity in accepting the principle of ubuntu. 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 it as one of the values
underpinning our Constitution when dealing with the question of
criminal
punishment. In that case, 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 ... ’.
[6]
In
Port
Elizabeth Municipality v Various Occupiers
,
[2]
another
Constitutional Court judgment, 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.’
[7]
I am an enthusiastic proponent of the
concept of ubuntu, and I shall attempt to ensure that it is reflected
in the sentence that
I am now to impose upon you.
[8]
I am guided in the difficult task of
determining an appropriate sentence by legislation passed by the
National Assembly which requires
certain minimum sentences to be
imposed for certain offences. The two murder counts that you were
convicted of were framed with
the provisions of section 51 of the
Criminal Law Amendment Act 105 of 1997 (the Act) in mind, and, in
particular, part 1 of schedule
2 to that Act. That part of the
schedule identifies murder committed when the death of the victim was
caused during a robbery with
aggravating circumstances. The minimum
sentence applicable for that type of murder is life imprisonment.
[9]
I advise you that 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. The Act does
not define what ‘substantial and
compelling’ circumstances are, this being left to the courts to
determine.
[10]
Courts
have consequently tried to get to grips with what ‘substantial
and compelling’ means. A leading case on this
subject is the
matter of
S
v Malgas
.
[3]
Indeed, that case was referred to by both your counsel, Mr Luthuli,
and Mr Ngubane for the state, on Friday when they addressed
the court
on sentence. In that case, Marais JA 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 Marais JA said that 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.
[11]
Marais JA went on to state that
courts
are required to approach the imposition of sentence conscious of the
fact that the Legislature has ordained the 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.
[12]
In
my view, it is important when considering your sentences not to start
with the view that the minimum sentence is, without further
consideration, a just sentence. If that was to be the starting point,
there would be no purpose in permitting the prescribed minimum
sentence to be departed from when substantial and compelling
circumstances are found to exist. 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. If a just
sentence falls materially below the prescribed sentence,
there will
be substantial and compelling circumstances to depart from the
prescribed sentence.
[4]
[13]
Are there any substantial and compelling
circumstances to be found in this matter? During the course of the
trial, I looked for
signs that there is something in each of you that
is worthy of redemption. I thought that perhaps accused two, despite
his shameful
criminal record, may have displayed some form of human
decency for which he could receive credit when he told Col Mbongwa
that
he was feeling:
‘…
guilty
as I didn’t expect that someone will get killed.’
That appeared to me to be
a hopeful sign of someone who has perceived the errors of his ways.
But, unfortunately, it was not, because
accused two took to the
witness box and flatly denied that he had ever said as much. Mr
Mthembu, you stated:
‘
I
never said I wanted to clear my conscience’.
[14]
That being said, I cannot ignore the fact
that an apology of sorts was proffered by all three of you to Ms
Mathews. Mr Luthuli addressed
her while she was in the witness box
and said the following:
‘
I
must say to you, your family and children, that they are very sorry
for what happened, it was not their intention to take the
life of
your husband. They ask you to find forgiveness in your heart for what
they did. It was not their intention. They are very
sorry and are
short of words.’
[15]
Those
words tend to show a contrite attitude.
In
S
v Matyityi
,
[5]
Ponnan JA had the following to say on the 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)
[16]
The words spoken by Mr Luthuli to Ms
Mathews were eloquently spoken by him. I had the distinct impression
that they were sincerely
spoken upon your instruction. To be sure, I
asked him whether this was the view of each of the accused, or merely
of one of you
speaking on behalf of all three of you. I was told that
this was the view of each of you. None of you have admitted that you
were
at the rugby club and you have not taken the court into your
confidence. There is, however, a suggestion in what you instructed
Mr
Luthuli to say on your behalf that you acknowledge your presence and
involvement in the events at the rugby club. With some
hesitation, I
accordingly accept that you have displayed some remorse.
[17]
All of you made a extra curial statements
of sorts and all indicated that you had gone to the rugby club to
commit a robbery. That
plan went horribly wrong. Your gang was armed
to ensure that you could achieve your aims. However, I acknowledge
that none of you
personally had firearms. Those that had the firearms
are either dead or have evaded arrest. Moreover, I do not have a
clear picture
of what happened at the rugby club and, more
particularly, I do not have a clear understanding of what led to the
first shot being
fired. I do not know whether it was fired by one of
your gang members or by a member of the public. You were armed
with pangas.
A sign that you may have intended to intimidate and not
cause lasting harm is the evidence tendered by the state that you did
not
use the sharp edge of the pangas to strike the patrons, but
rather the flat side.
[18]
Upon a balanced evaluation of all the
evidence, I am persuaded that what you intended to do that evening
was to rob the patrons
of the Pongola Rugby Club, not commit murder.
That was an unfortunate consequence of your conduct. Accused one and
three have clear
criminal records. Accused two does not and I will
consider his criminal record shortly. Despite the horrific
consequences of your
conduct, I consider all these factors that I
have mentioned and I am persuaded that there are substantial and
compelling circumstances
that justify a departure from the minimum
sentence prescribed.
[19]
I am fortified in this view by the
youthfulness of accused three, aged either 19 or 20 at the time, and
the relative youthfulness
of accused one, aged 25. Both are of an age
that offers the hope of reformation. Accused two cannot benefit from
his age, for he
was of an age that ought to have seen him dissuading
all of the gang members from embarking on this disastrous course of
conduct.
[20]
While on the subject of accused two, Mr
Luthuli expressed his concern that there might be something not quite
right with him, something
that requires the attention of a
psychologist. Mr Luthuli submitted that whilst he was not a
psychologist, he had some experience
in assessing behaviour arising
out of his previous occupation as a schoolteacher. I have spent three
weeks in the presence of accused
two and I confess that I have seen
nothing that tells me that he requires to be psychologically
assessed. He is entirely alert
and has obviously contributed to his
defence. By all appearances, he is entirely normal. Perhaps what
concerns Mr Luthuli is not
so much his conduct in this court, but his
conduct out of court. He is obviously a person who does not shrink
from criminal conduct,
as his lengthy criminal record reveals. That,
however, does not mean he requires mental assessment. It means that
he makes bad
decisions or that he has bad values or that he cares
little for his fellow man, for he has been given numerous
opportunities by
the courts to reconsider his path in society but
constantly chooses not to curb his criminal instincts. There is no
reason for
any form of professional inquiry to be undertaken into
accused two’s conduct. He will have that opportunity available
to
him, and may choose to avail himself of it, in the place to which
I shall shortly dispatch him.
[21]
I have mentioned your respective ages but I
have not lost sight of your other personal circumstances. Mr
Phakathi, you are a Swazi
citizen and have two children aged 6 and 9
years respectively. Mr Mthembu, you had a scholastic career that
ended in standard 6.
You have three children aged 15, 16 and 19
respectively. Mr Sihlongonyene, you are also a Swazi citizen and were
self-employed
at the time of your arrest. Despite your youthfulness,
you are already the father of a young child.
[22]
Of the three of you, accused two is the
only one with a criminal history. It makes for disturbing reading. It
commenced in 2003
with a conviction for dishonesty that attracted a
prison sentence of 12 months. There is another conviction for theft
in 2006 that
led to a sentence of 5 years’ imprisonment and a
conviction for possessing a firearm and ammunition unlawfully that
led to
another sentence of five years’ imprisonment. In 2015,
there is a conviction for housebreaking with intent to steal and
theft
which resulted in a sentence of 8 years’ imprisonment. In
my view, while I am not required to impose the minimum sentence,
I
must ensure that accused two receives a more severe sentence than
accused one and three because of his unremitting criminal conduct.
[23]
In arriving at the appropriate sentence for
each of you, I have taken account of the fact that you have been in
custody for four
years awaiting trial. That is a sad indictment of
our criminal system. That period has already been factored into the
sentences
that I shall impose upon you.
[24]
Finally, you have been convicted of
multiple offences. I must ensure that the cumulative effect of the
sentences imposed upon you
is not unduly harsh. I believe that I have
achieved this. I accordingly regard the following sentences as being
just in the circumstances
of the matter:
1.
Accused one
:
(a)
Count one: Attempted robbery with
aggravating circumstances
Fifteen years’
imprisonment.
(b)
Count two: Murder
Twenty years’
imprisonment.
(c)
Count three: Murder
Twenty
years’ imprisonment.
(d)
In terms of
the provisions of section
280(2) of the Criminal
Procedure Act 51 of
1977,
it is ordered that the sentences on count one and count three shall
run concurrently with the sentence on count two.
(e)
N
o
determination in terms of
section
103(1)
of
the
Firearms
Control Act 60 of 2000
is
made.
(f)
Mr Phakathi, you will serve an effective twenty years’
imprisonment.
2.
Accused two
:
(a)
Count one: Attempted robbery with
aggravating circumstances
Twenty years’
imprisonment.
(b)
Count two: Murder
Twenty years’
imprisonment.
(c)
Count three: Murder
Twenty
years’ imprisonment.
(d)
In terms of
the provisions of
section
280(2)
of the
Criminal
Procedure Act 51 of
1977
,
it is ordered that fifteen years of the sentence imposed on count one
and the entire sentence imposed on count three shall run
concurrently
with the sentence on count two.
(e)
N
o
determination in terms of
section
103(1)
of
the
Firearms
Control Act 60 of 2000
is
made.
(f)
Mr Mthembu, you shall serve an effective twenty-five years’
imprisonment.
3.
Accused three
:
(a)
Count one: Attempted robbery with
aggravating circumstances
Fifteen years’
imprisonment.
(b)
Count two: Murder
Twenty years’
imprisonment.
(c)
Count three: Murder
Twenty
years’ imprisonment.
(d)
In terms of
the provisions of
section
280(2)
of the
Criminal
Procedure Act 51 of
>
1977,
it is ordered that the sentences on count one and count three shall
run concurrently with the sentence on count two.
(e)
N
o
determination in terms of
section
103(1)
of
the
Firearms
Control Act 60 of 2000
is
made.
(f)
Mr Sihlongonyene, you will serve an effective twenty years’
imprisonment.
Do you all understand? I
wish you good luck.
________________________
MOSSOP J
APPEARANCES
Counsel for the
state
: Mr C Ngubane
Instructed
by:
: Director of Public
Prosecutions
Pietermaritzburg
Counsel for the three
accused
: Mr
M Luthuli
Instructed
by
: Legal Aid South Africa
Durban
Date of hearing on
sentence
: 15 March 2024
Date of judgment on
sentence
: 18 March 2024
[1]
S
v Mankwanyane
1995
(3) SA 391 (CC).
[2]
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para 30.
[3]
S
v Malgas
2001 (2) SA 1222 (SCA).
[4]
S
v GK
2013 (2) SACR 505
(WCC) para 14.
[5]
S
v Matyityi
2011
(1) SACR 40 (SCA).