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[2024] ZAKZPHC 27
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S v Dlamini (Sentence) (CCD09/2024) [2024] ZAKZPHC 27 (27 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, NORTH EASTERN CIRCUIT
Case
no:
CCD09/2024
In
the matter between:
THE
STATE
and
SIFISO
NKOSINATHI
DLAMINI
ACCUSED
JUDGMENT
ON SENTENCE
MOSSOP
J
:
[1]
This is an ex tempore judgment.
[2]
It
has been said that there is no such thing as a crime of passion, only
a crime of possession.
[1]
That
observation seems to apply neatly to the facts of this matter. Mr
Dlamini, you have been convicted of an offence of the utmost
seriousness. Some may construe it to be a crime of passion because it
involved your former lover but it is, in truth, a crime of
possession. When Ms Shelembe informed you of the fact that she was
not prepared to continue in a romantic relationship with you,
you
were not prepared to accept her decision. You wanted to continue to
possess her and you reckoned that the best way of ensuring
that would
continue was to kill her new lover. That you then did, in a most
brutal way, stabbing the deceased three times, twice
in his chest and
once in his lower abdomen. And then you walked away and left him to
die.
[3]
That you planned the
death of the deceased permits of no doubt when the evidence of Ms
Gumbi is considered. Before you stabbed the
deceased to death you
proceeded to Ms Gumbi’s place of residence and persuaded her to
ascertain from the deceased where he
resided. Three days later, you
went to his home and lay in wait for him and your former lover early
one morning and then you killed
him, all in utter silence. The
deceased could not have expected his fate. He did not resist you and
he probably died not knowing
why you desired his death.
[4]
I debated yesterday
with the state advocate whether a distinction could, or should, be
drawn between wicked and evil killers and
those that kill out of
passion. It appears to me, after reflection, that such a distinction
can be drawn in the appropriate circumstances.
Crimes of passion are
generally not premeditated but occur suddenly and impulsively,
usually without thought for the consequences.
But I do not think it
would be proper to make such a distinction when the murder is not
committed impulsively, but where it has
been thought of, planned and
then brought about. For that type of conduct is a manifestation of
wickedness and not of true passion.
[5]
In
our law, p
lanning
and premeditation have long been recognised as aggravating factors in
the case of murder.
[2]
That is
not surprising, for planned criminality must by its very nature be
regarded as being more reprehensible than an offence
committed
thoughtlessly on the spur of the moment.
[6]
You
are not a stranger to crime or to violence. You have a relatively
recent conviction for assault with intent to do grievous bodily
harm
in 2016 for which offence you received a custodial sentence of two
years. I intend to dwell on this previous conviction for
a while, for
there are chilling similarities between that previous conviction and
your conduct in this matter.
[7]
Yesterday,
I asked your counsel for more details regarding this previous
conviction, which you ultimately admitted. Mr Mkhwanazi
sought
instructions from you, and you told him the details of that
conviction, which he then relayed to the court. What he told
the
court was that the complainant in that matter, a man, had been
injured by you in a traditional stick fight and had then laid
a
complaint against you with the South African Police Services (the
SAPS). You stated that the complainant sustained an injury
to the
head and you were ultimately prosecuted and convicted and sentenced
to two years’ imprisonment arising out of that
complaint.
Something about that did not ring true with me. It seemed unlikely to
me that someone who willingly involves himself
in a traditional stick
fight would later complain about a defeat that he suffered and report
it to the SAPS. I remembered the popular
saying that ‘cowboys
don’t cry’ and thought that this conduct on the part of
the victim was unlikely to have
occurred. I accordingly instructed
the state advocate to obtain more details on this previous conviction
overnight. He did so.
He is thanked for his efforts in this regard,
as is the investigating officer. Not only did they obtain the
information needed,
they also managed to arrange for the docket
relating to your previous conviction to be delivered to this court.
[8]
The
production of the docket and the evidence of the investigating
officer this morning made it plain that what you had instructed
Mr
Mkhwanazi to tell the court yesterday regarding your previous
conviction was, indelicately put, nothing but a pack of lies.
[9]
There
had been no traditional stick fight at all. There was no male
complainant, either. The complainant in that matter was a young
woman. She was your ex-girlfriend and the mother of two of your
children. According to the digital summary of the matter retrieved
by
the investigating officer, her mother had left her at home when she,
the mother, had gone to work. On her return from work,
she found her
daughter at home covered in blood. Her daughter explained that you
had hit her with a bush knife. The victim’s
statement in the
docket adds muscle and flesh to this skeletal outline. You wanted to
know from her who she was in love with, but
she refused to tell you.
When demanding this information from her, you were armed with a
knife. The next day, you went to the victim’s
homestead and
accused her of making a fool of you and then struck her on the head
and both arms and legs with a bush knife.
[10]
Yesterday, you
obviously believed that you could spin any story to this court and
put a gloss on it to favour yourself. You clearly
did not expect your
version to be investigated further. You made another mistake, if that
is what you believed. Today, you attempted
to fudge the facts, by
continuing to say that you were charged for striking the
complainant’s brother in a traditional stick
fight. But,
ultimately, you conceded that you were charged with assault with
intent to do grievous bodily harm in respect of your
ex-girlfriend
and that is the offence for which you were sentenced to two years’
imprisonment. To the end, however, you attempted
to minimise your
conduct, by asserting that you did not strike your ex-girlfriend with
a bush knife but with a thick stick.
[11]
You have been exposed
for what you are, a shameless, manipulative liar.
While
that much is clear, it is also clear that you are, by nature, a
violent person. Your experience in prison did not persuade
you to
review your attitude to violent behaviour. That is unfortunate, for
society hopes that those who commit crime will recognise
the error of
their ways and make sure that they do not again reoffend.
[12]
The
position that you find yourself in now is entirely of your own
making. Mr Ngubane for the state correctly said yesterday that
you
had attempted to shift the blame from yourself onto the deceased when
you falsely alleged that he had been the primary aggressor.
He said
that demonstrated that you were not prepared to accept responsibility
for your own conduct. I tend to agree with him. That
failure is an
ominous sign when your potential for rehabilitation is considered.
Yesterday, Mr Mkhwanazi urged me to view you as
a person who has the
potential for reformation and rehabilitation. It is so, as remarked
upon in this court’s judgment that
led to your conviction, that
your evidence was littered with frequent apologies and
acknowledgments on your part that you had made
a mistake. It is
tempting to view those utterances as true signs of your remorse. In
S
v Matyityi
,
[3]
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).
[13]
You have falsely denied
your guilt throughout and you have not disclosed why you acted as you
did. The court, as an independent
observer, may deduce why you did
what you did, but for the court to recognise you as being truly
contrite about your behaviour,
you needed to take the court into your
confidence. You needed to disclose, in fact, why you did what you
did. That may require
you to acknowledge some unpalatable truths
about yourself. But that you must do if you are to receive any credit
for any remorse
that you claim to have. You have not done that. It is
conceivable therefore that your apologies, and the acknowledgements
that
you made a mistake, are simply expressions of regret and not
true expressions of remorse.
[14]
It appears that you are
entirely self-centred in your outlook on the world. You were in a
romantic relationship with Ms Shelembe,
yet at that very time you
were a partner in a traditional marriage with another woman with whom
you had two children. Simultaneously,
you were involved in two other
relationships with two other women, who had each also given birth to
a child by you. The latter
two children are presently two years old
and one-year-old respectively. At the time that this offence was
committed, they would
have been approximately six months younger.
Thus, while the father of two very young children, you involved
yourself in another
relationship, this time with Ms Shelembe. It
seems that you lived your life according to your needs and desires
and without any
consideration for others.
[15]
What I have just
referred to regarding your progeny was what you told me yesterday.
Today, you told me something completely different.
You have two
children with each of two women and not two children with one women
and one child with another women and one child
with a further woman.
Quite frankly, Mr Dlamini, you have told so many stories that I do
not know where the truth lies.
[16]
While your life may
pivot around what you want to do and when you want to do it, that
will soon come to an end. You need to understand
that your behaviour
does not occur in a vacuum. Your conduct impacts on other people. It
obviously impacts on those who are dependent
upon you. But it also
impacts upon those who are forced to live with the fallout from your
criminal behaviour. I refer in this
regard to Ms Shabalala and Ms
Shelembe, both of whom have deposed to victim impact statements.
Those statements were handed in
by the state and I have considered
their contents. They make for difficult, unpleasant reading.
[17]
Ms Shabalala viewed the
deceased as her son. She was not the biological mother of the
deceased but his maternal aunt. She herself
was blessed only with a
biological daughter but she raised the deceased as if he was her son.
He cared for her and made sure that
she was properly looked after.
The deceased’s mother is still alive but in poor health and not
able to attend these proceedings.
The deceased himself fathered a
child. That young child will now grow up without ever having a memory
of her father because of
her present tender age.
[18]
Ms Shelembe, in her
statement, described the horrific scene that occurred before her
eyes. It must, indeed, have been an awful thing
to have witnessed.
Unfortunately, she states that she blames herself for the death of
the deceased. Had she not commenced her relationship
with him, he
might still be alive, so she reasons. Her feelings of guilt are no
doubt heartfelt, but in my view she does not bear
the stain of guilt
over what occurred. There is only one person that caused the death of
the deceased, and that is you. Ms Shelembe
cannot, and must not,
punish herself for your conduct, over which she had no control. I
hope that you reflect on the anguish that
you have caused to someone
that you professed, at one stage, to love.
[19]
As
you are aware, the offence for which you have been convicted carries
with it a minimum sentence of life imprisonment. 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. That does not mean that
I must find
that there are ‘exceptional’ circumstances present that
justify a lesser sentence. In
Malgas
,
[4]
the court found 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. The court observed 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.
[20]
However, the court in
Malgas
went on to state that 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.
[21]
I have carefully
considered all the representations made on your behalf yesterday by
Mr Mkhwanazi. I do not lose sight of the fact
that both your parents
are deceased, that you were employed before your arrest and that you
have been in custody for six months
awaiting trial. I have already
mentioned that you are the father of four children. But arrayed
against you is the fact that you
committed a murder that you coolly
planned and efficiently carried out and that you have a previous
conviction for an offence that
involved violence. You have also
exhibited a willingness to mislead the court on the facts of that
previous conviction.
[22]
There is nothing in
what has been disclosed to this court about your personal
circumstances that commends itself to me as being
grounds upon which
I could rely to justify imposing a sentence other than the prescribed
minimum sentence. There is much that indicates
that the prescribed
minimum sentence should be applied in your case. There is nothing
that I see in you as a person that indicates
to me that you are
likely to acknowledge that your behaviour is unacceptable. You
clearly have trust problems and you have problems
in your
relationships with women. Those problems seem to manifest when
relationships end. Women who terminate relationships with
you appear
to be at serious risk.
[23]
I accordingly conclude
that I am not able to find that any substantial or compelling
circumstances exist. In addition, given your
proclivity for violent
conduct, I am satisfied that you are not the type of person who
should be permitted to lawfully possess
a firearm in the future.
[24]
I accordingly consider
the following to be a just sentence in all the circumstances of this
matter:
(a)
On the count of murder,
you are sentenced to life imprisonment.
(b)
N
o
determination is made in terms of
section
103(1)
of
the
Firearms
Control Act 60 of 2000
. That means you may not lawfully possess a
firearm.
Do you 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 accused:
Mr
D Mkhwanazi
Instructed
by:
Legal
Aid South Africa
Empangeni
Date
of trial:
18,
19, 20, 25, 26 March 2024
Date
of judgment on sentence:
27
March 2024
[1]
Gloria Marie Steinem, born 25 March 1934,
American
journalist and
social-political
activist
.
[2]
S
v Khiba
1993
(2) SACR 1
(A)
4;
S
v Malgas
2001
(1) SACR 469
(SCA)
para 34 (
Malgas
).
[3]
S
v Matyityi
2011
(1) SACR 40
(SCA).
[4]
S
v Malgas
2001 (2) SA 1222
(SCA).