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[2022] ZAKZPHC 43
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S v Khasibe (CCD18/2022) [2022] ZAKZPHC 43 (30 August 2022)
SAFLII
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: CCD18/2022
In
the matter between:
THE
STATE
and
BONGANI MBONGENI
CHRISTOPHER KHASIBE
ACCUSED
SENTENCE
Bezuidenhout
AJ
[1]
On 18 August 2022 the accused, Mr Bongani Christopher Khasibe, was
found guilty of
one count of murder read with the provisions of
section 51(1) and Part I of Schedule 2 of the
Criminal Law Amendment
Act 105 of 1997
, which in effect means that the prescribed minimum
sentence is life imprisonment, unless I am satisfied that substantial
and compelling
circumstances exist which justifies the imposition of
a lesser sentence.
[2]
The indictment alleged that the accused killed Ms T[....] M[....]
(‘the deceased’)
on 21 June 2021. She was 29 years old at
the time.
[3]
The murder of the deceased was witnessed by her 6-year-old son, Mr
N[....] M[....],
as well as her mother, Ms Nonhlanhla Cele, both of
whom testified before me. The deceased’
s 3
-year-old son was
also present when she was murdered.
[4]
The facts were set out in detail in my judgment, and I will not
repeat it, safe to
say that the accused and the deceased were
involved in a relationship which was an abusive one. On 17 June 2021,
the deceased applied
for a protection order against the accused.
Although the Form 5 Notice was not served on the accused, he was
aware of the application
by the deceased. He came to her homestead on
21 June 2021, accosted her in her home and proceeded to kill her in a
most brutal
manner in front of her mother and children.
[5]
The post mortem report, and its facts and findings were admitted by
the accused. In
paragraph 4 of the report, handed in as Exhibit ‘B’,
Dr Deysel described the injuries sustained as follows:
(a) A
stab wound, ± 15 mm long to the right temple.
(b) A
stab wound, ± 40 mm long to the right cheek.
(c) A
stab wound, ± 45 mm long to the upper posterior lateral aspect
of the neck on the right side.
(d)
Ten stab wounds to the upper anterior chest, all 20-25 mm long.
(e)
Three stab wounds to the upper posterior arm, and upper back.
(f)
Six stab wounds to the right upper back and arm.
(g)
Four stab wounds to the left side of the chest.
[6]
The State proved previous convictions against the accused, which he
admitted. Of significance
is the conviction of murder on 30 January
2005. The accused was sentenced to 25 years’ imprisonment for
killing his wife.
He was released on parole on 2 October 2017,
serving only 12 years of his sentence. The parole period was to
endure until 29 December
2029.
[7]
The accused’s counsel addressed me in mitigation, as he chose
not to testify.
She placed the following personal circumstances of
the accused on record:
(a) He
is 52 years old.
(b) He
is single but has four adult children and two grandchildren.
(c) He
is self-employed and operates a tuck shop. It was his evidence during
the trial before this court that
he sold alcohol at the tuckshop. His
counsel confirmed that he did not have a licence to do so.
(d) He
earned approximately R10 000 per month from his tuckshop which
he used inter alia to support his
two grandchildren.
(e)
His highest level of education was grade 10 (standard 8).
(f)
He has been in custody since 22 June 2021.
[8]
It was submitted on behalf of the accused that his personal
circumstances, considered
cumulatively, amounted to substantial and
compelling circumstances, justifying a deviation from the prescribed
minimum sentence.
I was asked to blend the accused’s sentence
with mercy.
[9]
Counsel for the State handed in an affidavit by Ms Babongile
Thobekile Chuene. Attached
to this affidavit was a victim impact
statement by Ms Cele, the deceased’s mother. It was marked as
exhibit ‘E’.
[10]
Ms Chuene assisted Ms Cele to write her statement. Ms Cele set out in
detail the psychological
and emotional trauma suffered as a result of
the crime. She stated that she was shocked about what had happened
and will never
forget what she saw. She was unable to help her
daughter. She suffers from high blood pressure and questioned why the
accused had
to kill the deceased in front of her and the children.
She detailed how N[....] had been affected. He used to be a happy
child
but has become withdrawn and his mind is always somewhere else.
Ms Cele further stated that after the incident she became ill, she
could not cook or go to fetch water and was emotional all the time.
She feels helpless and does not know what to do anymore. Her
grandchildren have lost their mother. Ms Cele suffered financially as
a result of the incident. She did not have money to pay for
the
deceased’s funeral and had to ask for assistance from her
family. She also expressed her and her family’s sadness
when
they found out that the deceased was pregnant at the time of her
death. This information was recorded in the post mortem report.
Ms
Cele expressed the hope that the accused would be sentenced to prison
for a long time.
[11]
Counsel for the State addressed me on sentence and referred me to
S
v Robertson
[1]
where Kusevitsky J dealt in detail with the biggest scourge in our
society, namely gender based violence and femicide.
[12]
In paragraph 1 of the judgment, femicide is described ‘as the
murder or intentional killing
of a female by her intimate partner’.
The judge quoted various statistics which emanated from reports
compiled for sentencing
purposes.
[2]
Reference was inter alia made to a report which stated that in South
Africa, half of female murders could be classified as femicide,
with
femicide in South Africa being six times higher than the global
average. A further statistic quoted was that globally, 66 000
women fell victim to femicide.
[13]
Counsel for the State submitted that the accused has shown that he
has a predisposition to commit
violence towards his intimate
partners. It was also an aggravating factor that the deceased was
killed in front of her two small
children and her mother.
[14]
It was also submitted that the murder of the deceased was clearly
premeditated, as the evidence
showed the accused lying in wait for
the deceased to return home, whilst armed with a knife.
[15]
Counsel for the State lastly submitted that the cumulative effect of
the accused’s personal
circumstances did not amount to
substantial and compelling circumstances, and that life imprisonment
was the only appropriate sentence.
[16]
When it comes to sentencing an accused, a court must decide what
sentence would be appropriate
bearing in mind a number of factors.
The author S S Terblanche in his
A Guide to Sentencing in South
Africa
, provides a summary of the basic principles according to
which sentence is imposed:
‘
(1)
The sentencing court has to impose an appropriate sentence, based on
all the circumstances of the case. The sentence should
not be too
light or too severe.
(2) An appropriate
sentence should reflect the severity of the crime, while at the
same time giving full consideration to
all the mitigating and
aggravating factors . . . the sentence should reflect
the
blameworthiness
of the offender, or be
in
proportion
to what is deserved by the offender. .
.
(3) An appropriate
sentence should also have regard to or serve the interests of
society. . . The interests of society can refer
to the protection
society needs . . . or the deterrence of would-be criminals. . .
(4) In the interests of
society the purposes of sentencing are deterrence, prevention and
rehabilitation, and also retribution.
. . .
(6) Rehabilitation should
be pursued as a purpose of punishment only if the sentence actually
has the potential to achieve it. In
the case of very serious crime,
where long terms of imprisonment are appropriate, it is not an
important consideration
. . .
(9)
Mercy is contained within a balanced and humane approach to
consideration of the appropriate punishment. This appropriate
punishment
is not reduced in order to provide for mercy. . .’
[3]
(Footnotes omitted.)
[17]
As far as sentencing involving the minimum sentence legislation is
concerned, the seminal judgment
of
S
v Malgas
[4]
set out how the court should deal with substantial and compelling
circumstances. In essence, a court should use the prescribed
sentences as a point of departure and should weigh all traditional
sentencing considerations. A court should only depart from the
prescribed sentence if imposing such sentence would be unjust.
[18]
The accused’s counsel has urged me to find that his personal
circumstances, considered
cumulatively, would amount to substantial
and compelling circumstances. In
S
v Vilakazi
[5]
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
.’
[19]
I have referred above to the scourge of gender based violence in our
country. I have detailed
the deceased’s injuries, which
demonstrates the incredibly violent and vicious attack on her by the
accused. She must have
suffered incredible pain , shock and horror in
her last moments. Our courts have addressed the issue of gender based
violence over
and over. In
S
v Rohde
[6]
the following was held:
‘
Crime
based on gender is an affliction in our society. Crimes against
women are a social ill and efforts by government and
society are
increasing in light of a steady increase in these types of offence.
The rate of murder of women in South Africa is
alarmingly high,
compared to the global average. Attitudes to women determine how
women are treated in society. 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
.’
[20]
In
S
v Pacham
[7]
the court quoted liberally from a lecture presented by Maya P:
‘
54
. . .She emphasised that the complex nature of the trend towards
gender-based violence in our society needs to be addressed and
that
gender-based violence is rooted in structural inequalities between
men and women and is characterised by the use and abuse
of physical,
emotional, or financial power and control.
55. It was pointed out
that our Legislature has enacted a number of statutes aimed at
addressing these women-oriented challenges
and that it is not
debatable that women are a vulnerable group whose well-being and
safety is precarious in our patriarchal society,
arising from factors
related to their historic oppression and exclusion from economic
activity. It was noted that the legal mechanisms
in place to deal
with this scourge in our society are seemingly inefficient in light
of the continued rampant gender-based violence
in our country.
56. The learned justice
continued to point out that one of the insidious qualities of gender
based violence and femicide is its
far reaching, adverse impact on
all aspects of a victim’s life and its devastating impact on a
number of their constitutional
rights, which guarantee human dignity,
freedom and security of persons. Our nation is committed to the
creation of a society that
is free from violence and puts a high
premium on a person’s bodily integrity. Gender based violence
and femicide directly
violate these foundational principles of our
Constitution.
57.
The learned justice emphasised that the Courts, guided by various
principles of our legal system, play a crucial role in ensuring
just
outcomes in these cases and in alleviating the problem. They bear the
difficult task, when the guilt of an offender has finally
been
proved, of finding the right balance between a just sentence on one
hand, and a clear message that will deter gender-based
violence in
society on the other hand.
’
[21]
According to the crime statistics released by the South African
Police Services for the fourth
quarter of the 2021/2022 financial
year (for the period of January to March 2022), 898 women were
murdered.
[8]
A further 1 222
women were subjected to attempted murder, and 15 034 were the
victims of assault with the intent to commit
grievous bodily harm.
[22]
In order to bring about awareness to the plight of women in this
country, the month of August
was proclaimed as Woman’s Month. I
started with this session, doing crime, on Monday, 15 August 2022. I
have already done
three cases in which the victims were women.
Instead of celebrating women, we are mourning them.
[23]
The accused has shown himself to be a man who shows no respect for
women. Instead of being loving
and caring to his intimate partner, he
abuses, assaults, and kills. He was sentenced to 25 years’
imprisonment for killing
his wife. For reasons unknown to us he was
released on parole after serving less than half his sentence. Despite
being on parole
until 29 December 2029, the accused showed little
regard for the law, and demonstrated that his time spent in prison
did nothing
to rehabilitate him and keep him form a life of crime. He
sold liquor without licence. He assaulted and abused the deceased
over
a period of time to such an extent that he broke her arm. When
she took steps to try and protect herself from his vicious assaults
by applying for a protection order, he killed her. I get the distinct
impression that the accused could not handle this much younger
woman
going against him.
[24]
The statistics of offenders released from custody who re-offend makes
for shocking reading. Depending
on which website is accessed, it is
estimated that between 50% and 70% of offenders released from custody
re-offend. The Department
of Correctional Services faces many
challenges such as overpopulation and lack of resources, but society
in general will lose faith
in our legal system when an accused, duly
arrested, convicted, and sentenced, is released back into the
community after serving,
in instances such as the present, less than
half of his sentence, only to re-offend. In the present matter, the
accused took another
life, whilst he should still have been in jail.
[25]
The accused’s counsel has urged me to blend his sentence with
mercy. He has shown the deceased
no mercy. He has shown her children
no mercy when he killed their mother in front of them. He has shown
her mother no mercy when
he killed her daughter in front of her. No
parent should ever have to see something like this.
[26]
Our courts have not hesitated to impose life imprisonment in cases of
gender based violence and
femicide.
[9]
In terms of
section 73(1)
(b)
of the
Correctional Services Act 111 of 1998
, ‘an offender
sentenced to life incarceration remains in a correctional centre for
the rest of his or her life’, subject
to certain provisions of
the Act. In terms of
section 73(6)
(b)
(iv),
a person who has been sentenced to ‘life incarceration, may not
be placed on day parole or parole until he or she has
served at least
25 years of the sentence’.
[27]
I have taken all the usual factors into account as well as the basic
principles referred to above.
I have also taken the following
additional factors into account:
(a)
The violence and viciousness of the attack on the deceased.
(b)
The fact that the accused killed the deceased in front of her
children.
(c)
The previous conviction of the accused, showing a clear propensity to
commit crimes against women who are
his intimate partners.
(d)
The accused’s utter lack of remorse.
[28]
I can find no substantial and compelling circumstances which would
justify a deviation from the
prescribed minimum sentence.
[29]
I accordingly sentence the accused to life imprisonment.
[30]
I also direct that a copy of this judgment be provided to the
Department of Correctional Services,
to be placed in the accused’s
prisoner file in order to be considered by the Parole Board when it
convenes to decide on whether
the accused qualifies for parole, in 25
years’ time.
BEZUIDENHOUT AJ
Appearances:
Date
heard: 18
August 2022
Date of
Judgment: 30
August 2022
On behalf of the
State: Adv
S Singh
Director
of Public Prosecutions
On behalf of the
Accused:
Adv Marais
Legal
Justice Centre
[1]
S
v Robertson
2022
[ZAWCHC] 104.
[2]
Ibid
para 32.
[3]
S
S Terblanche
A
Guide to Sentencing in South Africa
3
ed (2016) at 151-152.
[4]
S
v Malgas
2001
(1) SACR 469
(SCA).
[5]
S
v Vilakazi
2009
(1) SACR 552
(SCA) para 58.
[6]
S
v Rohde
2019
(2) SACR 422
(WCC) para 54.
[7]
S
v Pacham
(2019)
JOL 45328
(WCC) paras 54-57.
[8]
https://www.saps.gov.za/services/downloads/fourth_quarter_presentation_2021_2022.pdf
(accessed
25 August 2022).
[9]
See
S v
Binjane
2021 JDR 1810 (GP),
S
v Nkuna
2021 JDR 1433 (NWM),
S
v Tumaeletse
2020 JDR 0344 (NCK).