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[2022] ZAMPMBHC 56
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S v Mndawe (Sentence) (CC22/2021) [2022] ZAMPMBHC 56 (10 February 2022)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER: CC22/2021
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:-
THE
STATE
versus
JULIUS
THABISO MNDAWE
Accused
JUDGMENT
(SENTENCE)
GREYLING-COETZER
AJ
INTRODUCTION
[1]
Having killed five
young black women known to him and buried their bodies in his yard,
Mr Mndawe was found a criminal and convicted
on 4 February 2022 in
respect of five counts of Murder and five counts of Defeating or
Obstruction of the Course or the Administration
of Justice.
[2]
The convictions in
respect of the five counts of Murder, attract a minimum sentence in
terms of the Criminal Amendment Act 105 of
1997 (“the Act”)
of life imprisonment. In other words, unless I am satisfied that
there are substantial and compelling
circumstances as envisaged in
Section 51(3) of the Act, I shall be obliged to impose at least life
imprisonment.
[3]
The imposition of
sentence is not a mechanical process in which predetermined sentences
are imposed for specific crimes. In each
case the sentencing court
has to take into account all relevant factors, afford the appropriate
weight thereto and strike a balance
between the various interests to
be considered. This is required to be done notwithstanding the
disturbing events which underpin
the convictions still lingering in
one’s mind. The sentence imposed must be and is the product of
clearheaded, unemotional
and considered deliberation.
[4]
The
approach to sentencing is termed the “
triad
of Zinn
”
,
being the consideration and balance of the personal circumstances of
the accused; the nature and extent of the crime and the interest
of
society.
[1]
But at the
same time, the four-fold objects of punishment are to be taken regard
of, namely deterrence; prevention; rehabilitation
and retribution.
[2]
[5]
The punishment must
fit the crime. In
S
v Rabie
1975 (4) SA 855
(AD) at 862G-H, it was held as follows:-
“
Punishment
should
fit the criminal
as well as the
crime
,
be fair to society
and be
blended with the measure
of mercy
according to the
circumstances
.” (own emphasis)
[6]
As
alluded to above, and faced with the application of the prescribed
minimum sentence, a sentencing court may only depart therefrom
if
said court, upon a consideration of the circumstances of the
particular case, is satisfied that such circumstances render the
prescribed sentence unjust, in that it would be disproportionate to
the crime, the accused and the need of society, so that an
injustice
would be done by imposing that sentence.
[3]
[7]
From
S
v Malgas
[4]
it ought to be distilled that a court, when faced with a crime in
respect of which a minimum sentence is prescribed, must approach
a
matter conscious of the fact that the legislature has ordained the
prescribed minimum sentence as the sentence that should ordinarily
and in the absence of substantial and compelling grounds be imposed
for the listed crimes in the specific circumstances.
[5]
[8]
It thus stands to be
determined whether life imprisonment is appropriate in respect of the
murders committed by Mr Mndawe.
[9]
Mr Mndawe was born in
1994 and is still young at 28 years of age. He was 24 years old when
the first murder of the five were committed.
He is the second born
and has one older and two younger brothers. Both his parents are
still alive.
[10]
Mr Mndawe is not
married. He has 6 children from 4 different woman. Two of his
children are aged 8, one is 5 years of age, one is
aged 4 and the
other two are 2 years of age. All the children reside with their
respective biological mothers. Mr Mndawe supported
4 of the 6
children in undetermined amounts, depending on affordability and
need. The youngest two children he has never supported
as he has no
contact with them. This is unsurprising when regard is has to their
age and Mr Mndawe being arrested in July
2019.
[11]
Mr Mndawe completed
Grade 7. Prior to his arrest he was employed as a security guard at a
lodge near the Kruger National Park, earning
R3 000.00 per
month. This was preceded by employment as a general maintenance
worker, earning R4 500.00 per month. In
the latter capacity he
was employed for five years.
[12]
He has stands before
court as a first offender. He has been in custody since his arrest.
[13]
Mr Mndawe did not
testify in mitigation of his sentence.
Had you done so, it
would have been taken into account as a mitigating factor. That he
elected not to do so, will however not be
viewed as an aggravating
factor.
[14]
The State relied on
five victim impact reports, which were received into evidence by
agreement between the parties. These reports
expressed the
devastating effect the disappearance, murder and concealment of the
bodies had on the various families.
[15]
The judgment in
respect of Mr Mndawe’s conviction contains an evaluation of the
circumstances in which the crimes were committed.
I have considered
such circumstances in arriving at a decision on whether life
imprisonment is an appropriate sentence and I do
not again repeat
such circumstances herein.
[16]
What the court knows
about the specific circumstances of the crimes is what Mr Mndawe set
out in his Section 112(2) statement and
the admissions received by
the court in terms of Section 220 of the Act.
[17]
In summation, Mr
Mndawe was known to
Elina
(hereafter refered to as
Tokkie
),
B[....],
N[....], N[....]2 and F[....].
They
all, on 5 different dates, spanning over 18 months, went to Mr
Mndawe’s place of residence. There they all got embroiled
in an
argument with Mr Mndawe. He assaulted them until they fell to the
ground and were no longer breathing. Mr Mndawe then buried
their
bodies in his yard, to conceal his crimes.
[18]
The concealment of
the crimes, through burial, resulted in only their remains being
found. This effectively silenced the young women
as their remains had
little to tell.
Although
this is the case, and notwithstanding their advanced stages of
decomposition, some physical evidence provided inklings
of what
transpired and the cause of death of some.
[19]
B[....]
was
15 years old, Grade 9 pupil and was murdered in January 2018.
B[....]
had no injuries to her bones, and her orbital, nasal and oral
cavities were intact.
[20]
N[....]
,
a young adult, was murdered in March 2018. The fatal injury being
blunt head trauma.
[21]
NoN[....]2,
was younger than
sixteen years of age, and murdered in April 2018.
NoN[....]2’s
wrists were bound with a white shoe lace and a piece of wire.
[22]
F[....]
was
a minor, murdered in September 2018
[23]
Tokkie’s
skull was partially
burnt. Both her hands and feet were absent. She was murdered in May
2019.
[24]
None of the reports
recorded the absence of teeth, broken facial bones or any broken
bones, which countermanded Mr Mndawe’s
recount of the assaults
which caused their deaths.
[25]
The impact of the
crimes on the families of the five young women, as well as on the
family of Mr Mndawe is profound. Not only did
the disappearance and
deaths cause unimaginable emotional distress, but the manner in which
their bodies were treated is deplorable.
The burying of their bodies
took away the sacred act of putting their souls to rest.
[26]
The murders were
committed over a period of eighteen months, some 5 months and longer
apart, during which time Mr Mndawe had time
to reflect on his heinous
deeds and to change his life. He did not.
[27]
All
persons are entitled to enjoy the basic and fundamental right to
life, which is not only enshrined and intrenched in the Constitution,
but it is also declared therein as a non-derogable right.
[6]
This seems to be of no consequence to Mr Mndawe.
[28]
Viewing all the acts
of murder and concealment cumulatively, they must rank high on the
ladder of serious crime. These were premeditated
murders, having
serious consequences. It appears that these crimes were not only
hardhearted murders, but calculated on completion
to conceal that
which was done.
[29]
Although Mr Mndawe
has spent an extensive period, from July 2019, in custody, and
although it is undoubtedly so that under the correct
circumstances
this fact alone could have qualified for a finding that substantial
and compelling circumstances are present, which
would have entitled
this court to deviate from the minimum sentence applicable, this case
is not such a case.
[30]
In
S
v Matyityi
[7]
remorse was explained to be a gnawing pain of conscience for the
plight of another. Thus, genuine contrition can only come from
an
appreciation of an 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. For a court to 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 had 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. The former is
absent in this matter and I am unable to make such
a finding.
[31]
A life sentence is
the most severe sentence which a court may impose. It endures for the
remainder of the natural life of the offender.
Whether it is an
appropriate sentence, particularly in respect of its proportionality
to the particular circumstances of the case,
as dealt with above,
requires careful consideration. This has been done and I am unable to
find that there are any substantial
and compelling circumstances
present which would warrant a deviation from the minimum sentence
applicable.
[32]
Mr
Mndawe has been convicted of the monstrous crimes, and for that he
deserves nothing but severe custodial punishment. In
S
v Holder
[8]
it was stated as follows:-
“
In
the application of the principle that imprisonment ought to be
avoided, the penal element must, in serious offences, of whatever
nature, come to the fore and be properly considered, if punishment
still has any meaning in the criminal law. The community expects
that
a serious crime will be punished, but also expect at the same time
that mitigating circumstances must be taken into account
and the
accused’s particular position deserves thorough consideration.
That is sentencing according to the demand of our
time
.”
[33]
Mr Mndawe, It is most
regretful as you are relatively young and have no previous
convictions. But, your conduct warrants the severest
possible
penalty. Society expects no less. The crimes warrant such a result,
and your circumstances are not sufficiently compelling
to come to any
different conclusion.
[34]
In
the result, this Court SENTENCE
[9]
you as follows:-
Count
1
:
the murder of
Elina
Tokkie Tlaka
,
you are sentenced to
LIFE
IMPRISONMENT
.
Count
5
:
the murder of
B[....]
Khoza,
you
are sentenced to
LIFE
IMPRISONMENT
.
Count
7
:
the murder of
N[....]
Purity Mdluli
,
you are sentenced to
LIFE
IMPRISONMENT.
Count
9
:
the murder of
N[....]2
Innocentia Mdluli
,
you are sentenced to
LIFE
IMPRISONMENT
.
Count
11
:
the murder of
F[....]
Mndlovu,
you are sentenced to
LIFE
IMPRISONMENT.
Counts
3, 6, 8, 10 and 12:
Obstructing the
Course of Justice or the Administration of Justice, as set out in the
charge sheet, you are sentenced to
FIVE
YEARS’ IMPRISONMENT
on
each count.
In
terms of Section 103(1) of Act 60 of 2000, a person is
ex lege
(that is in operation of law) automatically declared unfit to possess
a firearm. The court declines to determine otherwise, in
other words,
you are declared unfit to possess a firearm.
GREYLING-COETZER
AJ
DATE
OF HEARING:
7 February 2022
DATE
OF JUDGMENT:
10 February
2022
FOR
THE STATE:
ADV MATA – National Prosecuting Authority
Mpumalanga
Mbombela
FOR
THE DEFENSE:
ADV ERASMUS –
Legal Aid South Africa
[1]
S
v Zinn
1996 (2) SA 537
(A) at 540G-H
[2]
S
v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC) at par
[10]
[3]
S
v Malgas
2001
(1) SACR 469
(SCA) at par [25]
[4]
2001 (1) SACR
469
(SCA)
[5]
S
v Malgas
(
supra
);
S
v Vilakazi
2009 (1) SACR 552
(SCA) at par [15]
[6]
Section
11, read with Section 36 of the Constitution of the Republic of
South Africa 108 of 1996
[7]
2011
(1) SACR 40
(SCA) at par [13]
[8]
1979
(2) SA 70 (A)
[9]
Section
39(2)(a)
of the
Correctional Services Act 111 of 1998