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[2022] ZAMPMBHC 54
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S v Zitha (CC38/2021) [2022] ZAMPMBHC 54 (24 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER:
CC38/2021
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:-
THE
STATE
versus
MXOLISI
JOSEPH
ZITHA
Accused
JUDGMENT
(SENTENCE)
GREYLING-COETZER
AJ
[1]
The accused (“Mr
Zitha”) was charged with the murder of Ms
Goodness
Ncanekile Peke Masina
his
long-standing girlfriend and mother of his four children (“the
deceased”). The State alleged in the charge sheet
that the
murder of the deceased was premeditated and/or planned and read with
Section 51(1) and Part 1 of Schedule 2 of the Criminal
Law Amendment
Act 105 of 1997 (“Minimum Sentence Act”). Mr Zitha
pleaded guilty as charged and did not place the premeditation
or
planning in dispute. He admitted that he was guilty of premeditated
or planned murder and submitted a Section 112(2) statement
in terms
of the Criminal Procedure Act 51 of 1977 (as amended) (“the
Act”) to the court.
[2]
On the strength of
his plea and Section 112(2) statement Mr Zitha was convicted of
Murder, as read with the Minimum Sentences Act
The
conviction attracts a
minimum sentence of life imprisonment. This court thus does not have
a clean canvass to work from. Differently
put, unless I am satisfied
that there are substantial and compelling circumstances as envisaged
in Section 51(3) of the
Minimum
Sentence Act
,
I shall be obliged to impose life imprisonment.
[3]
Imposing
a sentence pursuant to conviction has been described as a “
painfully
difficult problem
”
which involves a careful and dispassionate consideration of all the
relevant factors. The court must consider the factors
referred to
in
S
v Zinn
[1]
being:-
(a)
the interests of society,
(b)
the personal circumstances of the accused; and
(c)
the nature of the offences that have been committed.
[4]
The court must also
in considering above factors, be alive to the recognised objectives
of sentencing, being prevention, rehabilitation,
deterrence and
retribution.
The
seriousness of the offences, the circumstances under which it was
committed and the victim are also relevant factors in respect
of the
last element of the triad.
[5]
The
ultimate objective is that the punishment must fit the crime. In
S
v Rabie
[2]
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]
A
sentencing court, faced with the application of a prescribed minimum
sentence such as in this case, may 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]
A sentencing court is
expected to balance all the relevant factors and must endeavor not to
over- or under emphasize any one of
them.
PERSONAL
CIRCUMSTANCES OF THE ACCUSED
[8]
Mr Zitha was born in
1988 and is currently 33 years of age. According to him he passed
Grade 8, but left school in order to provide
for the deceased and
their eldest child when the deceased fell pregnant. The deceased and
Mr Zitha commenced a romantic relationship
when they were
approximately 18 or 19 years of age. Their relationship was blessed
with four children – the oldest being
14 years of age, the
second born 12 years of age, the third born 6 years of age and the
youngest being 4 years of age. There is
nothing to suggest that their
relationship in the large was unstable.
[9]
Mr Zitha was
predominantly employed in the building industry, and depending on the
project, on average eared R3 000.00 per
month. The deceased was
also contributing as a cleaner alongside the road works, her salary
depending on the contract was R1 200.00
per month.
[10]
Mr Zitha’s
father is alive, and his mother died when he was in school. He has
three siblings, two of who are older and one
younger than him.
[11]
Mr Zitha has been in
custody for approximately 8 months, since this incident on 11 June
2021. His four minor children are currently
staying with their
maternal uncle, being the brother of the deceased.
[12]
Mr Zitha did not
testify in mitigation of his sentence.
Had he 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.
[13]
The State led no
evidence in aggravation of sentence.
[14]
Mr Zitha admitted two
previous convictions, one in respect of Assault with the intent to do
grievous bodily harm which incident
occurred on 18 April 2017, and
for which he was convicted on 13 May 2021. He was sentenced to 6
months imprisonment, wholly suspended
for 5 years on condition that
he is not again convicted of assault with the intent to do grievous
bodily harm during the period
of suspension.
[15]
The second conviction
was for possession of stolen goods, which was committed on 16
February 2018, and for which he was convicted
on 10 June 2021. He was
sentenced to 3 years imprisonment wholly suspended for 5 years on
condition that he is not convicted of
the same crime committed during
the period of suspension.
NATURE
OF THE OFFENCES
[16]
From the Section
112(2) statement and formal admissions in terms of Section 220 of the
Act, the facts on which Mr Zitha was convicted
can be summaries as
follows. The deceased left Mr Zitha and their joint place of
residence in March 2021, and did not return.
During the same
period Mr Zitha was arrested for the possession of stolen goods and
remained in custody. Mr Zitha and the deceased
did not have any
contact with each other since then. He did not know her exact
whereabouts but he knew that the deceased was staying
with a friend.
[17]
On 10 June 2021 (the
day of the incident) Mr Zitha was convicted for the offence as
referred to in paragraph 15 herein above and
which he was arrested
for in March 2021. He was released from custody on the same day and
he returned to their residence just to
find that the deceased was
still not there.
[18]
Mr Zitha went look
for the deceased and found her at a friend Lindi Dube’s home.
He confronted her as to why she was not at
their residence. She
indicated that she no longer staying there.
[19]
Mr Zitha pressed the
deceased to return to their place of residence in order for them to
speak alone. Lindi Dube interjected, and
indicated that the deceased
will not go with Mr Zitha. He again requested the deceased to go with
him, but she intimated that she
would not accompany him as she was
afraid of him.
[20]
The aforementioned
exchange resulted in an argument, during which the deceased indicated
that their relationship had to end. Mr
Zitha then grabbed the
deceased and pulled her out from Lindi Dube’s residence. He
explained that he did so as he wanted
to remove the deceased from
Lindi Dube’s house, who according to him, was the person
causing the problems.
[21]
Mr Zitha slapped the
deceased after she persisted that she was not going with him. She
indicated that she had another boyfriend.
Mr Zitha then armed himself
with a stick and started hitting the deceased. This escalated by Mr
Zitha commencing to strangle the
deceased until she fell to the
ground.
[22]
He knelt next to her
and continued to strangle her, saying to her that he would stop if
she told him why she was still friends with
Lindi Dube. Mr Zitha
continued to strangle her. After the deceased lost consciousness, Mr
Zitha “
wake
her up
”.
The deceased regained consciousness, whereafter Mr Zitha went to find
an object to conduct the kill with. He armed himself
with a bow saw,
which he fetched some meters away next to the house. With the saw, Mr
Zitha slit the deceased’s throat.
[23]
The photographic
evidence and post-mortem report show that the deceased’s neck
was not merely slit by the saw but the incision
wound was 14cm deep.
Her head was basically cut off, save for the
trapezius
muscle (upper back muscle) and
longus
coli
which
was connecting the neck and the body.
[24]
The murder was brutal
with more than one weapon being used, a stick, a mop with a steel
head and a saw. The bloody mop was standing
up straight next to the
side of the house, as if it had been replaced, next to the house some
meters away from where the deceased
body was found.
[25]
Our
courts have consistently held that where death occurs because of
jealously or anger as between lovers, that this is a crime
of passion
due to the emotional condition in which the guilty finds
himself/herself. It is dependent on the facts of each matter
whether
such a situation would give rise to a mitigating factor.
[4]
[26]
As
remarked in
S
v Khwela
[5]
a court should be careful to guard against the perpetuation of the
often held misperception that in every case where there is a
killing,
consequent upon a breakup of a love relationship, of an ex-lover or
the ex-lover’s new lover, the very existence
of such
relationship alone is sufficient for the perpetrator to be regarded
in such sympathetic a light as to justify the imposition
of a
sentence upon him or her markedly more lenient than that which would
be imposed had the love relationship not existed, and
had there been
some other motive for the killing that one connected with such love
relationship.
[27]
It is unavoidable
that this was yet another case of brutal gender-based murder. A case
where a decision of a women to leave her
partner, be it for whatever
reason, was not respected. Mr Zitha simply refused to accept that the
deceased left him.
[28]
One can understand
the emotion involved when your heart is broken by a person whom you
love, but it is incomprehensible that the
person who loved you enough
to share parenthood of four children with, can be the same
person who can decide to cause your
death in such a brutal manner. It
is deplorable. It leaves a though that, if you cannot find it within
you to respect the decisions
of your life partner, how can you have
any respect for the lives of strangers.
INTEREST
OF SOCIETY
[29]
Domestic
violence has become the norm and femicide seems to be how many a love
story end. I cannot express it better than it was
by Ratshibvumo AJ
(as he then was) in the matter of
S
v Mhaule
:-
[6]
“
The
community deserves to live in a better world than this. A world in
which a woman is able to move out of a relationship without
fear of
losing her life. A world in which one needs only a voice to say ‘no’
as oppose to strength to display it. A
world in which a woman’s
life is valued by all and her fate is not in the hands of a man who
creeped into her heart guised
as a lover: one who will one day decide
when her time on earth is over and that she should die. A world in
which she is able to
determine her own destiny and put her fate in
the hands of the creator according to her beliefs. But that world
remains far-fetched
and in our dreams; as long as cruel and heartless
murderers like the accused are still free to roam the streets,
mingling with
other humans. For on the face value, they look like
other humans showing no sign of inhumanity on their appearance,
especially
when dressed in beautiful human clothes. The community
demands that when these beings are unmasked, they should be removed
from
their minds for a long time and only rejoin them when the
element of humanity is part of their character
.”
[30]
When it comes to
domestic violence and femicide, the community wants only one thing,
and that is for it to stop.
[31]
This case does not
involve a woman who was killed for known infidelity or for being
caught cheating, as in many of the authorities
dealing with “spur
of the moment” murders. In the present matter the deceased was
not married to Mr Zitha, but involved
in a long-standing romantic
relationship, having four children together. The deceased decided,
for whatever reason, shortly before
or due to Mr Zitha’s
arrested, that she did not want to continue with the relationship.
She left their communal home and
him more than two months, before the
dreaded day. Unwilling to accept the termination of the relationship,
the very day on which
he was released from incarceration, Mr Zitha
made it his mission to find the deceased, he went to look for her and
brought and
end to her life.
[32]
It was argued on
behalf of Mr Zitha that there are substantial and compelling
circumstances that justify a deviation from the prescribed
minimum
sentence of life imprisonment. In this respect it was argued that Mr
Zitha was remorseful, that he pleaded guilty and that
a lot of
emotion was involved in the incident. It was implored upon the court
that Mr Zitha’s actions were as a result of
a build up of
almost three months, since the day that the deceased left him, and
for the period that he was incarcerated. Compassion
was argued for as
Mr Zitha is the person who will have the ultimate responsibility of
explaining to his four minor children that
he took their mother’s
life.
[33]
It
was submitted that the present matter can be equated to the matter of
S
v Pillay
[7]
and that a sentence of 20- or 25-years imprisonment would be just in
the circumstances. In
Pillay
supra
it was found that the accused in murdering his long-standing
girlfriend was not premediated or planned although the accused
pleaded guilty to premeditated murder, and the State accepted such
plea.
[34]
In the
Pillay
matter
supra
,
the sentencing court proceeded to consider the issue of premeditation
in circumstances where an accused has pleaded guilty and
the State
accepted such plea. I respectfully disagree that a sentencing court
can revisit the issue, in the circumstances of a
plea to
premeditation, which plea has been accepted by the state and on which
plea the court was satisfied to convict the accused.
[35]
The
court in
Pillay
approached
the matter on the basis that the accused was convicted of Murder,
committed under circumstances contemplated in Section
51, Part 1 of
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
. Although
the court did not specifically make reference to which sub-section of
Section 51
was applicable, the court proceeded from the basis that
life imprisonment is the prescribed minimum sentence. The court then
heard
evidence, which was
inter
alia
termed as “
evidence
to show that the offence was planned and premeditated
”
during the sentencing part of the proceedings.
[8]
It was
inter
alia
argued that one factor which constituted substantial and compelling
circumstances, warranting a deviation from the prescribed minimum
sentence, was that it was a crime of passion, and that the State
accepted the facts as contained in the
Section 112
statement, and
said plea contained no evidence of premeditation or planning. The
court then proceeded to consider the facts on
which the accused was
convicted, as set out in his
Section 112
statement, and found that
there was nothing on the facts and accepted by the State to indicate
premeditation or planning. This,
to my mind, is bad in law for the
obvious reason that the accused had already at that point in time
been convicted of premeditated
murder, therefore the issue has been
pronounced on. The only enquiry left would be whether substantial and
compelling circumstances
exist and this too can be a vehicle for
reconsideration of issues already pronounced on.
[36]
The minimum
sentencing legislation requires for its application that an accused
must have been convicted of an offence referred
to in the Schedule.
This a foreshadows that the elements of the offence, including the
specific form of the offence, must be established
before conviction
and found the basis for conviction.
[37]
It is trite that a
criminal trial has two stages, being the verdict and sentencing
stages. The verdict concerns the guilt or innocence
of the accused on
the offence he or she was charged with. The sentencing stage relates
to that which is spelled out by the word
“sentence”.
During both these stages a court would be engaged with finding of
fact, but the facts in respect of the
first stage would relate to the
elements of the offence (and/or the specific form of the offence). In
the second stage the mitigating
or aggravating facts, in respect of
the sentence appropriate to the form of the offence of which the
accused has been convicted,
would come to play.
[38]
The
Supreme Court of Appeal in
S
v Legoa
[9]
explained as follows:-
“
[17]
Where the accused was charged with Robbery, the question whether the
robbery was committed with aggravating
circumstances had to be
determined as part of the verdict – that is, as part of the
court’s finding on guilt or innocence
in the first stage. The
aggravating circumstances where elements of the form of the offence
of robbery with which the accused was
charged. Hence they had to be
proven in the first stage of the trial and the finding regarding the
presence or absence was part
of the main verdict…
”
[39]
Therefore, and as
held by the Supreme Court of Appeal
supra
,
the legislature through the enactment of the minimum sentence
legislation did not create a new type of offence. They are specific
forms of existing offences, and where their commissioning is proven
in the form specified in the Schedule, the sentencing court
acquires
an enhanced penalty jurisdiction. It acquires this jurisdiction
however only if the evidence relating to all the elements
of the form
of the scheduled offence is led before conviction on guilt or
innocence, and the trial court finds that all the elements
specified
in the schedules are present.
[40]
When
a court is faced with a plea of guilty, which the State accepts, the
trial court ought not to convict the accused on the strength
of said
plea and during sentencing revisit the issues and come to a different
conclusion. A trial court in circumstances of a guilty
plea, which
has been accepted by the State is still tasked to ensure that it is
satisfied that the accused is guilty of the offence
to which he or
she has pleaded guilty.
[10]
Only after confirming that the trial court is so satisfied ought a
conviction to follow.
[41]
Should
a court at any stage of the proceedings under
Section 112
(this is
inclusive of subsection (1)(a) or (b), or subsection (2)) be in doubt
whether the accused is in law guilty of the offence
to which he or
she had pleaded guilty, or if it is alleged or appears to the court
that the accused does not admit to an allegation
in the charge, or
that the accused had incorrectly admitted any such allegation, or
that the accused has a valid defense to the
charge, or if the court
is of the opinion for any other reasons that the accused’s plea
of guilty should not stand, the court
shall record a plea of not
guilty and require the prosecutor to proceed with the
prosecution.
[11]
[42]
A
court is therefore not bound, as seems to be suggested in the
Pillay
matter, to a plea which has been accepted by the State, and then
during the sentencing proceedings, attempts to undo or smooth
over
that of which the accused had already been convicted of. It seems
that the trial court in the
Pillay
matter had in mind the trite principle that the State is entitled to
accept an accused’s plea of guilty on a lesser or alternative
charge, in which circumstances the court has no power to refuse the
State’s acceptance of such plea.
[12]
But that is not what transpired in the
Pillay
matter, as the accused had not pleaded to a lesser or alternative
charge, or at the very least from the judgment that does not
appear
to be the case. Allowing that where an accused has pleaded guilty to
Murder, as read with
Section 51(2)
, it might become relevant to
consider for the purposes of sentencing and mitigating or aggravating
circumstances, whether such
murder was planned or premeditated.
[43]
I can thus not agree
that on the strength of the matter of
Pillay
,
and notwithstanding the conviction of Mr Zitha pursuant to a guilty
plea to premeditated or planned murder, that this sentencing
court
can revisit that issue. Nor can it be reconsidered in mitigation of
sentence to the extent that a finding contrary to that
found at
conviction can be produced. The issue of premeditation and or
planning and the evidence in respect thereof or against
it,
should be presented before conviction.
[44]
Life imprisonment 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.
[45]
The cruelty with
which the crime was committed, warrants the severest possible
penalty. Your circumstances are not sufficiently
substantial and
compelling for this court to come to a different conclusion.
[46]
In the result, Mr
Zitha this court sentences you as follows:-
46.1
Count 2
:
For the murder of
GOODNESS
NCANEKILE PEKE MASINA
,
you are sentenced to
LIFE
IMPRISONMENT
;
46.2
In terms of
Section
103(1)
of Act 60 of 2000, a person is by the 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: 16
February 2022
DATE
OF JUDGMENT:
24
February 2022
FOR
THE STATE: Adv
Mathebula
National
Prosecuting Authority
Mpumalanga,
Mbombela
FOR
THE DEFENSE:
Adv Erasmus
Legal
Aid South Africa
[1]
1969
(2) SA 537 (A)
[2]
1975 (4) SA
855
(AD) at 862G-H
[3]
S
v Malgas
2001
(1) SACR 469
(SCA) at par [25]
[4]
S
v Meyer
1981 (3) SA 11 (A)
[5]
2001
(1) SACR 546 (NPD)
[6]
Unreported
(CC05/2020) [2020] ZAMP MBHC 8 (12 February 2020)
[7]
2018 (2) SACR
192
(KZD)
[8]
At
par [14]
[9]
2003
(1) SACR 13 (SCA)
[10]
Section
112(2) of the Criminal Procedure Act 51 of 1977 (as amended)
[11]
Section
112(1) of the Criminal Procedure Act 51 of 1977 (as amended)
[12]
See also
S
v Kekana
[12]
where the State accepted the accused’s plea of guilty on a
lesser or alternative charge as opposed to on the main charge.