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[2022] ZAFSHC 96
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S v Togowe (66/2017) [2022] ZAFSHC 96 (16 May 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: 66/2017
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
THE
STATE
and
NTSANE
ISAIAH TOGOWE
JUDGMENT
ON SENTENCE
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED
ON:
16 MAY 2022
[1]
The accused was convicted on one count of murder read with the
provisions of section
51(1) of the Criminal Law Amendment, Act 105 of
1997(the Act) and on one count of robbery with aggravating
circumstances read with
the provisions of section 51(2) of the Act.
He stands before court today for sentencing.
[2]
The facts on which the convictions are based are briefly as follows:
1) The deceased was
a businessman in Bloemfontein and owned a bottle store and a tavern.
On 29 March 2016 he was in the bathroom
in his home unclothed.
2) The accused and
two other men were seen approaching the deceased’s tavern. They
entered and went to D[....] M[....]1,
closed his mouth with a hand
and pointed her with a firearm. Thereafter they pushed her and one
M[....]2 into the house were they
met M[....] 3M[....]4. They
proceeded to the bathroom were the accused shot the deceased twice.
He died of a gunshot wound on the
chest.
3) The accused and
his companion proceeded to rob the deceased and his employees of
money in the amount of R40 000, a gold
wrist watch, a firearm and a
bakkie.
4) The
accused was later positively identified as one of the robbers and the
person who was in possession of the firearm
at the time when the
deceased was shot and killed. It was also established that he was one
of the people who robbed the deceased
and his employees.
[3]
The accused testified in mitigation of sentence and did not call any
witness.
When
the court imposes punishment it must also have regard to the personal
circumstances of the accused, the nature or seriousness
of the crime
as well as the interests of society. The court in
S
v Rabie
[1]
observed that the punishment which the court imposes should fit the
criminal as well as the crime, be fair to society and be blended
with
a measure of mercy.
With
regard to his personal circumstances the evidence reveal that the
accused is currently 45 years of age and unmarried. He has
three
children aged 9,12 and 16. The children stay with their mother. Prior
to October 2017 the elder one stayed with the accused
and the others
only visited over the weekends. When the mother of the children
worked night duties the children stayed with him.
[4]
The accused did matric at Fame
College. He had a transportation business and his average
income in
the business was between R3 000 and R3 800 per month.
Between February and March 2018 he sold his motor vehicle
used in the
business. The money was given to his wife for the maintenance of the
children. He testified that his two sisters and
their children were
also dependent on him financially.
[5]
He testified that he was
remorseful. In showing his remorse he went to the grave of the
deceased to ask for forgiveness and also
to convey to the deceased
that he was not responsible for the latter’s death.
[6]
The state called the son of deceased in
aggravation of sentence. He is 53 years old. He is the sole
survivor
in the family following the passing on of his two other siblings in
circumstances unrelated to this case. He has taken
over the
businesses of the deceased. According to him the businesses are not
doing well since the deceased passed on. The income
has gone down
after the death of the deceased. He testified about how the
death of the deceased had impacted him.
[7]
The main purpose of punishment is said to be ‘deterrent,
preventative, reformative
and retributive’.
[2]
[8]
Counsel for the accused submitted that the personal circumstances of
the accused taken
cumulatively constituted substantial and compelling
circumstances which warranted this court to deviate from imposing the
prescribed
minimum sentences. It is further submitted that the
accused has shown remorse and in this regard he went to the grave of
the deceased
to ask for forgiveness. The state holds a different
view.
[9]
S
v Malgas
[3]
sets out how the concept of substantial and compelling circumstances
must be approached. In this regard the court indicated that
a court
must approach the question of sentencing conscious of the fact that
the minimum sentences had been ordained as the sentences
which
ordinarily should be imposed unless substantial and compelling
circumstances were found to be present.
[10]
When dealing with the issue of remorse it is apt
to refer broadly to this passage in
S v Matyityi
in which the
court said the following with regard the question of remorse.
“…
Remorse
is a gnawing pain of consciousness for the plight of another. Thus
genuine contrition can only come from an appreciation
and
acknowledgment 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 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.”
[4]
[11]
The accused testified that he went to the grave of the deceased upon
been released from custody
on bail. He indicated that the reason that
he went to the grave was to go and ask for forgiveness from the
deceased and also inform
him that he was not responsible for his
death. The difficulty I have with the conduct of the accused is that
his conduct does not
demonstrate true and genuine remorse. Even if
one accepts that he went to the grave of the deceased it is clear
that he still did
not acknowledge his wrong doing. He still denied
that he was responsible for the death of the deceased. His hollow
apology does
not assist him. He had the opportunity to take the court
into his confidence and explain what motivated him to commit these
heinous
offences but he chose not to grab it. It is difficult to
understand how a person can claim genuine remorse and with the same
breath
deny any wrong doing.
[12]
It is appropriate at this stage to refer to the
following decisions as referred to in
S v Swart
where the
court made reference to the following: In
Sv Mhlakaza and Another
1997(1) SACR 515 (SCA) AT H519 d-e the following was said:
“
Given the current
levels of violence and serious crimes in this country, it seems
proper that, in sentencing especially such crimes,
the emphasis
should be on retribution and deterrence…Retribution may even
be decisive.”
[5]
[13]
The aggravating factors in this case are that the deceased was shot
and killed in his own home.
He was in the bathroom. He had no clothes
on. It is clear from the evidence that he was unarmed. There is no
evidence on record
to show that he even resisted the attack. The
version of both witnesses by the state is that when Ms M[....]4
screamed at the time
when the accused and his companions entered the
room in which she was, she only enquired what was happening. The
deceased was shot
in that state of nakedness. Ms M[....]1 testified
as to how traumatic it was for her to see the nakedness of the
deceased and had
to get a blanket to cover him. She testified that
she had always looked up to him as a father and it was difficult to
see him lying
on the floor naked.
[14]
Society expects that people should not only feel safe in their homes
but should actually be safe.
The deceased was murdered after taking a
bath in the sanctity of his home. The evidence reveal that the
accused was the only one
seen in possession of the firearm. He was
the main person forcing Ms M[....]4 to open the safe. He was the
person who actually
shot the deceased. He played a greater role in
the commission of these crimes.
[15]
The remarks in
S v Di Blasi
set out precisely what society
expects in cases of this nature. The court in that case said:
“
The requirements
of society demand that a premeditate, callous murder such as the
present should not be punished too leniently lest
the administration
of justice be brought into disrepute. The punishment should not only
reflect the shock and indignation of interested
persons and of the
community at large and so serve as a just retribution for the crime
but should also deter others from similar
conduct.”
[6]
[16]
It cannot be argued otherwise that the murder and robbery were
premeditated and callous. In my
view the murder of the deceased was
totally unnecessary due to the fact that he offered no resistance and
was unarmed. I hasten
to add that I should not be interpreted to mean
that if the deceased had offered resistance and was armed, then in
that case the
conduct of the accused would be less blameworthy. Far
from it, I only refer to this to illustrate the vulnerability of the
deceased
at the time he was shot.
[17]
The accused was convicted of theft on 5 March 1998. It is clear that
this conviction took place
more than 20 years ago. I will not take it
into account in these proceedings. Much was made about the accused
being responsible
for the maintenance and support of his children,
his siblings and his father. Nothing in my view turns on this. The
accused skipped
his bail in this case on October 2017. He was only
apprehended in 2021. He was according to his testimony in Lesotho. He
had someone
in Bloemfontein using his vehicle as a taxi and from the
proceeds he maintained his children. It is his testimony that he sold
the motor vehicle in February 2021.There is no evidence as to how he
managed to continue to maintain them after the vehicle was
sold. The
fathers of the sisters must maintain their children. The personal
circumstances of the accused taken cumulatively do
not constitute
substantial and compelling circumstances.
[18]
Having regard to the aggravating circumstances and weighing them
against the mitigating factors, I
am of the considered view that the
Accused failed to establish any substantial and compelling
circumstances warranting this court
to deviate from imposing the
prescribed minimum sentences. I accordingly make these orders and the
accused is sentenced as follows:
ORDER
1.
Count 1: Murder
The accused is sentenced
to life imprisonment;
2.
Count 2: Robbery with aggravating circumstances
The accused is sentenced
to 15(fifteen) years imprisonment;
3.
In terms of
s103(1)
of the
Firearms Control Act, 60 of 2000
, no order
is made.
P.E.
MOLITSOANE, J
On
behalf of the State: Adv.
Bontes
Instructed
by: The
Deputy Director of Public Prosecutions
BLOEMFONTEIN
On
behalf of Accused: Adv. Abrahams
Instructed
by:
The Legal Aid of South Africa
BLOEMFONTEIN
[1]
1975(4) SA 855(A).
[2]
See
R v
Swanepoel
1945(AD) 444 at 455.
[3]
2001(1) SACR 469.
[4]
200(1) SACR 40(SCA) at para 13.
[5]
2004(2) SACR 370 at para 11.
[6]
1996(1) SA SACR 1 (A) at para 10f-g.