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2022
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[2022] ZAFSHC 266
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S v Sejake (Sentence) (28/2022) [2022] ZAFSHC 266 (16 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 28/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
THE
STATE
versus
MOLEFI
SOLOMON SEJAKE
Accused
HEARD
ON:
1
2
SEPTEMBER 2022
CORAM:
AFRICA
AJ
DELIVERED
ON:
1
6
SEPTEMBER 2022
SENTENCE
[1]
Mr.
MOLEFI
SOLOMON SEJAKE,
you have been found
GUILTY
of one count of Murder,
read
with the provisions of section 51(2)
[1]
of the Criminal Law Amendment Act 105 of 1997, (‘the CLAA’),
as amended
[2]
.
This
country is currently engulfed in a sea of violent crimes ravaging
vulnerable sections of our society like women, with a never-ending
scourge of femicide and GBV
[3]
,
which continues to plaque South Africa. It
is
now the unenviable but necessary task of this court to impose an
appropriate sentence.
[2]
In deciding on an appropriate
sentence, the court must consider the “triad consisting
of the
crime, the offender and the interest of society”
[4]
“The elements of the triad contains an equilibrium and
tension. The court should, when determining sentence, strive
to
accomplish and arrive at a judicious counterbalance between these
elements in order to ensure that one element is not unduly
accentuated at the expense of or the exclusion of others. What is
necessary is that the court shall consider, and try to balance
evenly, the nature and circumstances of the offence, the
characteristics of the offender and his circumstances and the impact
of the crime on the community, its welfare and concern”
[5]
[3]
The infliction of
punishment is pre-eminently a matter for the discretion of the trial
Court and it is a cherished principle that
courts should, as far as
possible, have an unfettered discretion in relation to sentence;
which calls for constant recognition.
This is the hallmark of an
enlightened criminal justice system.
The
statutory mandatory minimum sentencing regime is applicable to
certain serious offenses but the trial courts are permitted to
depart
from the prescribed minimum sentences whenever they find “
substantial
or compelling circumstance
”
warranting a departure. This court is mindful that a criminal
sentence cannot, in the nature of things, be a matter of precise
calculation.
[6]
[4]
It is however commonly accepted that there are many purposes of
sentencing.
Firstly,
is the desire to punish a person who is
the wrongdoer and who has offended against society and caused harm to
others.
Secondly
is the intention to prevent the wrongdoer
from committing a similar offence again.
Thirdly
is to send a
message to other would be offenders not to engage in this kind of
activity and
Lastly
is the aspect of rehabilitation.
[5]
Another factor to be borne in mind is the question of mercy.
[7]
[6]
The
individualization of punishment requires proper consideration of the
individual circumstances of each accused person. This principle
too
is firmly entrenched in our law.
[8]
Punishment must fit the criminal as well as the crime, be fair to
society, and be blended with a measure of mercy according to
the
circumstances.
MITIGATION
OF SENTENCE
[7]
In mitigation of sentence, the defence submitted that the accused is
aged 53 and his
highest level of education is standard 7. It is
common cause that the accused and the deceased cohabited for 15
years, with no
children born of the relationship.
The
accused has 3 adult children and was employed at MPI construction,
prior his incarceration. He earned R3500 per fort night as
a general
worker and maintained the household. He at present suffers with a
chronic illness and is on medication.
The
defence further submits that the following factors constitutes
substantial and compelling circumstances, warranting a departure
from
the minimum prescribed sentence.
1.
The period spent incarcerated awaiting
the finalisation of this matter.
2.
The last previous conviction is older
than 14 years.
3.
The degree of seriousness of the offence
in comparison to other murder cases.
4.
The deceased did not suffer before
passing as it happened quickly.
5.
The pain and suffering as experienced by
the family of the deceased cannot be described as outstanding in
comparison to other murder
cases.
6.
This court must strike a balance between
the mitigating and aggravating factors.
7.
[8]
This court being referred to the case of
S v Rabie
was asked
to blend its sentence with mercy as sentence is not aimed at breaking
the accused but also to assist with rehabilitation.
The defence
argued that rehabilitation can be obtained with a shorter period of
imprisonment. This court was also referred to the
cases of
Malgas
and
Matyityi
and the defence conceded that this court is not
to deviated from the prescribed sentenced, for flimsy reasons. The
defence asked
this court to deviate based on the substantial and
compelling factors listed.
[9]
In respect of
section 103
of the
Firearms Control Act 60 of 2000
, no
address.
AGGREVATION
OF SENTENCE
[10]
In aggravation of sentence, the state handed in a Victim Impact
statement as complied by Agnes
Molo, the daughter of the deceased.
She states that the family is saddened by the death of the deceased
and are their lives no
longer easy. They struggle to be in
relationships and this offence has brought fear into their lives. As
a family they suffer with
trust issues as this crime was committed by
someone they knew for a long time. At times they relive where the
deceased was lying
in a pool of blood and the pain gets worse. As a
family, they have lost their mother of was their pillar. She was the
woman who
kept the family together and provided for them. They have
lost unconditional love and inner peace. They feel embarrassed to
talk
about what happened to their mother and George especially has
lost himself. This crime hit him the hardest because of the plans
he
had with his granny.
[11]
The state further argued that indeed this court should deviate from
the prescribed sentence,
but stated that the circumstances of this
case warrants this court to increase the prescribed sentence. The
state argued that life
is a person’s biggest commodity and no
sentence can bring back the deceased to her family. The state
submitted that
violent crimes in this country has reached epidemic
proportions, indicative of the lawlessness reigning in this country
at the
moment. Especially violent crimes against women and children
has escalated to the extent that the month of August dedicated to no
violence against women and children, had no impact whatsoever.
[12]
This court was referred to the case of
Mudau
v The State
[9]
where it was stated that:
“
Domestic
violence has become a scourge in our society and should not be
treated light, but deplored and also severely punished.
Hardly a day
passes without a report in the media of a woman or a child being
beaten, raped or even killed in this country.
Many women and
children live in constant fear. This is in some respects a negation
of many of the fundamental rights such as equality,
human dignity and
bodily integrity”
[13]
The state argued that this court must be mindful of the following
factors:
1.
In the present matter, the
accused and deceased was in a relationship for 15 years.
2.
The accused as the man of the
house should have protected the deceased, instead he took her life.
3.
The court must take account of
the manner in which the murder was committed, namely that the
deceased was asleep at the time of
death and had no chance to defend
herself.
4.
Eleven (11) stab wounds were
administered.
5.
The PM Report shows that all the
stab wounds were administered to vulnerable places, hence the finding
of
dolus directus.
6.
There were no problems between
them and the accused was in a position of trust.
7.
The manner in which the murder
was committed fills one with shock especially because it was done to
his wife.
8.
The accused failed to take
responsibility for his actions and did not take this court into his
confidence to testify in mitigation.
[14]
The state further argued that the accused is not a first time
offender and despite the fact that
his last conviction are old, 11
previous convictions demonstrates the type of person the accused is,
namely someone who has learnt
nothing from his previous
incarcerations.
[15]
The court was referred to the case of
Omar
v Government of the Republic of South Africa and Others
[10]
where the constitutional court said:
“
Domestic
violence brutally offends the values and rights enshrined in the
Constitution. Accoring to section 1, non-sexism is a founding
value
of our state. In addition, human dignity, the achievement of equality
and the advancement of human rights and freedoms are
recognised as
founding values. Section 12(1)(c) provides that everyone has the
right to freedom and security of the person, which
includes the
rights to be free from all forms of violence from public or private
sources. This right must be understood in conjunction
with the rights
to dignity, life, equality and privacy. This court has recognised the
constitutional requirement to deal effectively
with domestic
violence. In
Carmichele
, the court furthermore pointed out
that South Africa also has a duty under international law to prohibit
all gender based discrimination
that has the effect or purpose of
impairing the enjoyment by women of fundamental rights and freedoms
and take reasonable and appropriate
measures to prevent the violation
of those rights”
[16]
The state submits that the community is sick and tired of femicide
and the sentence imposed by
this court, should reflect their outrage.
The deceased family is severely effected by this crime as they did
not expect it, bearing
in mind that the accused showed the deceased
no mercy.
[17]
This court is mindful of the case of
S
v Makudu
[11]
where
it was stated that the behavior of an accused during trial may be
indicative of a lack of repentance or intended future defiance
of
laws by which society lives and therefore be a
relevant
factor in considering sentence
…”
[18]
As argued by the state, c
courts
indeed have a role to play in the promotion and development of a
culture that is founded on the recognition of human rights,
in
particular with regard to those rights which are enshrined in our
Constitution.
[19]
The accused and the deceased was in a love-relationship and was he a
father figure to her children.
In
S v Abrahams
it was stated
that the attitude of the accused reflected an approach to women as
objects or chattels to be used at will. This rings
true in the
present case where the gravity of violence unleashed on the
unsuspecting deceased made it seems like she was simply
a thing to be
discarded and not his wife of 15 years.
[20]
Goldstein J in the case of
S
v Ncheche
[12]
,
stated:
“
I
now deal with the interest of society. The unprecedented spate of
violence, and especially …against women and children,
is
escalating at an alarming rate. Helpless, defenceless women feel
unsafe, even in the sanctity of their own homes, and look to
these
courts to protect their interests and the courts can protect these
interests by meeting out harsh sentences.”
[21]
The accused gained nothing of worth for the perpetrating and
inflicting of this terrible and
horrific suffering on the deceased
and her family. Gender Based violence, threatens every woman and
particularly poor and vulnerable
in our society. In our country, it
occurs far too frequently that women are violated or murdered at the
hands of their partners.
The time has come to send a clear message
that and anyone perpetrate these crimes against the most vulnerable
in our society, does
so at his peril and our Legislature, and the
community at large, correctly expect our courts to punish
perpetrators severely. Communities
are outraged and if we fail to
take account of that outrage, we risk encouraging the breakdown of
law and order and communities
taking the law into their own hands.
[22]
Indeed ordinary law-abiding citizens in this country are at their
wits end about these ongoing
and senseless crimes involving violence
against women and sight should not be lost of the fact that society
view these crimes as
heinous and abhorrent. Within this context, is
there an injunction upon courts to protect women from these crimes.
[23]
In
R
v Karg
[13]
it
was stated that Serious crimes will usually require that retribution
and deterrence should come to the fore and that the rehabilitation
of
the offender will consequently play a relatively smaller role.
Society’s sense of outrage and the deterrence of the offender
and other potential offenders deserve considerable weight, in cases
of this nature.
[24]
In an effort to curb the wave of violent crimes which threatens to
destroy our society, the legislature
enacted
section 51
of the
Criminal Law Amendment Act 105 of 1997
. Courts are reminded in
Malgas
[14]
that
when considering what sentence to impose,
emphasis
was to be shifted to the objective gravity of the type of crime and
public’s need for effective sanctions against
it.
[25]
The specified sentences were not to be departed from lightly and for
flimsy reasons which could
not withstand scrutiny.
[15]
Traditional
mitigating factors
alone
cannot be considered to be substantial and compelling
circumstances.
[16]
[26]
This court is also mindful in assessing the
proportionality of the
prescribed sentence in a particular case;
the sentencing court
must determine what a ‘proportionate’ sentence would be,
considering all the circumstances traditionally
relevant to
sentencing. The proportionality of a sentence cannot be determined in
the abstract.
[27]
Sadly, in 2021, Statistics South Africa released a report,
Crimes
Against Women in South Africa
, indicating that one in five women
had experience physical violence by a partner. Therefore, an
unambiguous message needs to be
sent to offenders who participate in
gender-based violence and crimes.
[28]
In
S
v Ganga
[17]
it
was stated that,
a
court must still seek to differentiate between sentences in
accordance with the dictates of justice.
Seeking guidance in
Malgas
,
it was stated that the greater the sense of unease a court feels
about the imposition of a prescribed sentence, the greater its
anxiety will be that it may be perpetuating an injustice. That can
only be because it is satisfied that the
circumstances
of the particular case render the prescribed sentence unjust
or,
disproportionate
to the crime, the criminal and the legitimate needs of society
.
[29]
In
S
v Vilakazi
[18]
Nugent JA said the following:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of “flimsy”
grounds that
Malgas
said should be avoided.”
[30]
This court had regard
to the degree and extent of the violence used in the commission of
this heinous offences, the nature and weapon
used, the brutality and
cruelness of the attack when the deceased was asleep, the fact that
the deceased were stabbed multiple
times in the sanctuary of her own
home at the hands of her partner, the nature and character of the
deceased who was defenseless
at the time, the fact that they were in
a love relationship for a very long time, the fact that accused was
in a position of trust,
the fact that the offences were perpetrated
for reasons known only to the accused, the physical, emotional and
psychological trauma
that the deceased family endures every day of
their lives, and the loss of a mother and grandmother’s
unconditional love.
[31]
In
S
v Rohde
[19]
the following was held:
“
It
is the lowered perception of women as human beings, all of whom are
entitled to human dignity and equality, which results in
the
unhealthy social paradigm that they can be victims, and in fact end
up as victims of crime because they are women. The judiciary
must
guard against such perceptions and creating the impression that the
lives of women are less worthy of protection.”
[32]
In
Matyityi
it was stated that 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. 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.
[33]
In the present matter the accused has not shown remorse or an
appreciation of the consequences
of his actions.
[34]
On a balanced consideration of the totality of the evidence, this
court finds no substantial
and compelling circumstances to deviate
from the minimum sentence and accords with the state that a harsher
sentence is called
for under the circumstances of this case, which in
the view of this court will be
proportionate to the crime, the
criminal and the legitimate needs of society.
[35]
The accused is sentenced to
Twenty (20) years
direct
imprisonment.
[36]
Ancillary Orders:
In terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
, the accused
will remain
ex
lege
,
unfit to possess a firearm.
Notice in
terms of
section 299A
explained to the family of the deceased.
Appeal rights
explained and understood.
AFRICA
AJ
[1]
Part
2
of Schedule 2.
[2]
Also
read with
sections 92(2)
,
256
,
258
, of the CPA 51 of 1977.
[3]
Gender Based Violence.
[4]
S
v Zinn
1969 (2) SA 537
(A) at 540g.
[5]
S v Banda and others 1991 (2) SA 352 (B) 355.
[6]
Crime
and punishment in South Africa 1975 pg 150
[7]
S v Rabie
1975 (4) SA 855
(AD) at 862:
[8]
S
v Rabie
1975 (4) SA 855
(A) at 861D; S v Scheepers
1977 (2) SA 154
(A) at 158F – G
[9]
(547/13)
[2014] ZASCA 43
(31 March 2014.
[10]
2006 (2) SA 286
(CC) para 17.
[11]
2003
(1) SACR 500 (SCA).
[12]
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W) @ page 391, 395.
[13]
1961
(1) SA 231
(A) at 378-379.
[14]
2001
(1) SACR 469 (SCA).
[15]
Malgas supra “
Speculative
hypothesis favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts
as 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.”
[16]
S
v Obisi 2005 (2) SACR 350 (W).
[17]
2016
(1) 600 (WCC).
[18]
2009 (1) SACR 552
(SCA) para 58.
[19]
2019 (2) SACR 422
(WCC) para 54.