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[2022] ZAECGHC 21
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S v Norman (06/2022) [2022] ZAECGHC 21 (11 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GRAHAMSTOWN)
Not
Reportable
Case
no: 06/2022
In
the matter between:
THE
STATE
And
THANDOMZI
NORMAN
Accused
SENTENCE
Govindjee
J
[1]
Mr Norman returned from work at W[...] Farm, C[...],
on 30 April
2021. He found his girlfriend, A[...] M[...] (‘the deceased’)
in the company of a male farm resident. The
man had fled, and the
deceased was found naked under a blanket. At Mr Norman’s
insistence, he and the deceased proceeded
to report what had happened
to the man’s wife. That evening, after Mr Norman consumed
alcohol at a tavern, he argued with
the deceased and his sister.
Overwhelmed by anger, and despite his sister’s attempts to
intervene, he assaulted the deceased
with his fist and a stick and
kicked her with a booted foot. She managed to escape his attack by
exiting through a window.
[2]
Mr Norman awoke the following day and returned to the
tavern to
consume alcohol. He refused to see the deceased when she arrived
there to speak to him. They argued later that day at
his home. Mr
Norman enquired about the deceased’s whereabouts after she had
fled the previous evening. He then assaulted
her again, using his
fist, a stick and his booted foot. The deceased fell on the floor and
Mr Norman went to sleep. He awoke around
midnight and heard the
deceased snoring. He asked her if an ambulance should be called, and
she indicated that she was fine. Mr
Norman found her lying dead in
that position on the floor the following morning. He called his
sister and community members to
his house. They confirmed that the
deceased had passed away. The farm owner, ambulance and police were
called and Mr Norman was
arrested.
[3]
Mr
Norman pleaded guilty to charges of assault with intent to do
grievous bodily harm and murder. He made various admissions in
terms
of
s 220
of the
Criminal Procedure Act, 1977
.
[1]
In particular, he admitted that due to the severity and duration of
the assault he foresaw the possibility that his girlfriend
would not
survive. He reconciled himself with that possibility and persisted.
He was convicted on both counts by this court on
28 February 2022,
the State having conceded that the accepted facts were not reflective
of a murder that was planned or premeditated.
[4]
It is convenient to first deal with the sentence for the murder
conviction.
Section 51
of the
Criminal Law Amendment Act, 1997
[2]
provides for discretionary minimum sentences for certain serious
offences. A High Court shall, in terms of
s 51(2)
(a)
sentence
a first offender who has been convicted of an offence referred to in
Part II
of Schedule 2 to imprisonment for a period not less than 15
years. Any murder perpetrated by a first offender not falling within
the scope of
Part I
of Schedule 2 triggers this minimum sentence
unless a court is satisfied that substantial and compelling
circumstances exist to
justify the imposition of a lesser
sentence.
[3]
[5]
Courts are enjoined to moderate the punishments they impose with a
measure
of mercy and attempt to achieve a balanced outcome, serving
the public interest by approaching their task in an even-handed
manner.
[4]
The triad of factors
to be considered consists of the crime, the offender and the
interests of society and these factors must be
applied to consider
whether substantial and compelling circumstances exist to deviate
from the prescribed minimum sentence.
[5]
If such circumstances do not exist, the court is also enjoined to
consider an appropriate sentence, bearing in mind that the Minimum
Sentences Act provides only for a minimum sentence in these
circumstances, and a court must exercise a reasoned discretion in
determining an appropriate sentence.
[6]
The contents of the post-mortem examination report were accepted by
Mr
Norman. That report confirms that the deceased suffered bilateral
periorbital, haematoma, blood in the nostrils, extensive scalp
haematoma and massive subdural haemorrhage. She passed away because
of the head injuries she suffered at Mr Norman’s hands
and
sustained multiple bruises on the arms, thighs, and legs.
[7]
The deceased’s mother testified in aggravation of sentence. She
confirmed that the deceased was 17 years of age when she passed away.
She worked on the farm and had been staying there with Mr
Norman for
some time. He had advised her to stop going to school. The deceased
had occasionally supported her mother with grocery
money. She had
also reported abuse caused by Mr Norman on a previous occasion, and
the deceased had been fetched and brought to
the farm where the
deceased’s mother worked during 2021. She had returned to live
with Mr Norman after a month. He had not
offered any apology after
her murder and failed to contribute to her burial. The deceased’s
mother had experienced great
sorrow because of her child’s
death. She accepted Mr Norman’s apology when his counsel
explained the details of this,
and his situation, to her.
[8]
Mr Norman was 21 years of age at the time of the incident. He had
been
educated up to the level of grade eight and had left school due
to his family’s financial constraints and to look for a job.
He
had four siblings. His father was an amputee, unable to work and
dependent on a social grant, and his mother was unemployed.
Mr Norman
earned R4100 per month as a general farm worker. Counsel for Mr
Norman highlighted that he was a youthful first offender
who had
offered some assistance to the deceased when he woke up on the night
of her death. He had also not attempted to hide the
truth of the
matter and had contacted his sister and community members. He was
remorseful and had pleaded guilty to the charges,
taking the court
into his confidence. While the offence was serious and involved
gender-based domestic violence, the circumstances
reflected an
element of provocation, fuelled by alcohol. It may be accepted that
there had been no direct intention and that the
conviction was based
on
dolus eventualis
.
[9]
Society demands that stern sentences be meted out in cases where a
person’s
life is extinguished through the conduct of another.
As counsel for the state argued, gender-based domestic violence is a
serious
matter that plagues society. Sadly, many women, including
children, live in constant fear of precisely this type of occurrence,
and the supposed provocation, possibly driven by alcohol, is of
minimal benefit to the accused.
[6]
Mr Norman’s conduct violated various rights of the deceased,
including her rights as a person under the age of 18 years,
her
rights to bodily integrity and freedom and security of the person.
She was murdered in the place she resided by the accused,
a person
she would have trusted and who should have offered her protection
instead of harm.
[7]
[10]
Given the circumstances, a sentence of direct imprisonment is
unquestionably warranted.
[8]
I
have considered that the prescribed minimum sentence regime is a
point of departure, and that courts should not hesitate to depart
from this where it is appropriate to do so. This requires proper
weighing of all the traditional sentencing considerations to
determine whether the minimum sentence is proportional to the
crime.
[9]
In this case, Mr
Norman is a youthful first offender who foresaw that his conduct
might result in his girlfriend’s death,
and who persisted with
that conduct despite protestations from his sister. He has indicated
and demonstrated remorse for his conduct
by pleading guilty,
disclosing the facts that led to the deceased’s passing and
offering an apology to the victim’s
mother. I also accept that
he offered some limited assistance to his victim on the night of the
incident and have noted his socio-
economic circumstances and limited
level of education. Mr Norman’s actual conduct, however, cannot
be underplayed. Not only
did he assault the deceased at his home on
30 April 2021, when it might be said that he acted in the heat of the
moment, he repeated
that conduct even after he had time to
contemplate his actions, after his sister had tried to intervene and
after the deceased
had approached him of her own volition. He
nevertheless proceeded to beat and kick her, a girl of 17, to death
later that evening.
By doing so, he violated various rights of the
deceased and committed an appalling act of gender-based violence.
While various
ordinary mitigating circumstances do exist in this
case, most notably the perpetrator’s age and that he is a first
offender,
these are not, in my view, substantial and compelling and
do not justify a deviation from the prescribed minimum sentence.
[11]
It must be noted that s 51(2) of the Minimum Sentences Act, dealing
with Part II of Schedule
2 offences, already builds in a graded set
of punishments for convictions depending upon whether a perpetrator
is a first offender,
second offender or a third or subsequent
offender. Mr Norman benefits from this gradation and the mitigating
factors identified
stand to his benefit. While there are no
substantial and compelling circumstances to justify a reduction of
the prescribed minimum
sentence, that minimum appears to me to be
proportionate to the offence, the offender’s personal
circumstances and the interests
of society in this instance. Any
increase is unwarranted given the circumstances.
[10]
[12]
In convicting Mr Norman on the count of assault with intent to cause
grievous bodily harm,
I was satisfied that he committed two offences
approximately 24 hours apart and that this does not amount to a
duplication of convictions.
[11]
As to the conviction for assault with intent to cause grievous bodily
harm, and bearing in mind all the circumstances previously
outlined,
I am of the view that a sentence of two years’ imprisonment is
justified.
[12]
Considering the
cumulative effect of both sentences, it is appropriate for these
sentences to run concurrently.
[13]
A sentence of fifteen years’ imprisonment, over and above the
relatively short period already spent in custody, is effective
and
failure to order the sentences to run concurrently would result in an
aggregate penalty that is too severe.
[14]
It is also appropriate that Mr Norman is considered to be unfit to
possess a firearm, having been convicted of offences involving
violence for which he will be sentenced to periods of
imprisonment.
[15]
Order
[13]
The following order will issue:
a)
On Count 1 – Assault with
the intent to do grievous bodily harm
–
The accused is sentenced to 2 years’
imprisonment.
b)
On Count 2 – Murder –
The accused is sentenced to 15
years’ imprisonment.
c)
In terms of
section 280(2)
of the
Criminal Procedure Act, 51 of 1977
,
the sentence on Count 1 is to run
concurrently with the sentence on Count 2.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:28
February 2022
Delivered:11
March 2022
Appearances:
Counsel
for the State:
Adv T. Soga
Director
of Public Prosecutions Makhanda
046
602 3000
Attorney
for the Accused: Mr
V. Sojada
Legal
Aid South Africa
Makhanda
046
622 9350
[1]
Act 51 of 1977 (‘the Act’).
[2]
Act 105 of 1997 (‘the Minimum Sentences Act’).
[3]
S 51(3)
(a)
of
the Minimum Sentences Act. S 276 of the Act provides for the
sentences which courts can impose. The general purpose of imposing
a
sentence is fourfold: retributive and preventative, rehabilitative
(reformative) and to act as a general deterrent:
S
v Rabie
1975
(4) SA 855
(A) at 862G- H.
Courts
are
obliged
to
impose
minimum
sentences
unless
there
are
truly
convincing
reasons
for
departing from them:
S
v Matyityi
2011
(1) SACR 40
(SCA) para 23.
[4]
See
S
v Khulu
1975
(2) SA 518
(N) at 521-522.
[5]
Malgas
v S
2001
(1) SACR 469
(SCA);
Radebe
v The State
[2019]
ZAGPPHC 406 para 12.
[6]
See, for example
,
Marota v The State
[2015]
ZASCA 130
at para 19. Also see
S
v Chapman
[1997]
ZASCA 45
;
1997 (3) SA 341
(SCA) at 345A-B.
[7]
S
v Van Stade
[2017]
ZANCHC 21
para 14.
[8]
See
Seedat
v
S
[2016]
ZASCA
153
para
38
et
seq
,
on
the
efficacy
of
restorative
justice
as
an
inappropriate sentencing option in cases involving serious offences.
[9]
See, in general,
Malgas
v S
2001
(1) SACR 469
(SCA);
2001 (2) SA 1222
(SCA),
S
v Vilakazi
2009
(1) SACR 552
(SCA),
S
v Matyityi
2011
(1) SACR 40
(SCA) and
S
v PB
2011
(1) SACR 448
(SCA) para 21.
[10]
See
S
v Muller
2012
(2) SACR 545
(SCA) para 9, with reference to
Rabie
op
cit fn 3 at 866B-C, confirming that while judicial officers must not
hesitate to be firm when necessary, they should approach
their task
with humane and compassionate understanding of human frailties and
the pressures of society which contribute to criminality.
Also see
S
v Mulaudzi
2014
JDR 0594 (SCA).
[11]
S
v Whitehead and Others
2008
(1) SACR 431
(SCA) para 35. Also see s 280 of the Act.
[12]
For a comparable illustration, see
S
v Mulaudzi
op
cit fn 10 para 10.
[13]
S 280(2) of the Act.
[14]
S
v Muller
ibid
para 9.
S
v Dlamini
2012
(2) SACR 1
(SCA) para 43.
[15]
S 103(1)
(g)
of
the
Firearms Control Act No. 60 of 2000
.