About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2022
>>
[2022] ZAMPMBHC 92
|
|
S v Mashaba (Sentence) (CC 29/2021) [2022] ZAMPMBHC 92 (7 December 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA MPUMALANGA DIVISION, MBOMBELA HELD AT GRASKOP/MBOMBELA
CASE NO: CC 29/2021
DPP REF: M 18/2021
(1) REPORTABLE: YES
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED: NO
DATE: 07 December 2022
SIGNATURE:
In the matter between:
THE STATE
v
CHRISTOPHER VELLY
MASHABA
ACCUSED
JUDGMENT ON SENTENCE
MOOSA J:
[1]
MR CHRISTOPHER VELLY MASHABA (‘accused’)
has been found guilty
on Tuesday, 02 November 2021, on the
following charge:
[a]
COUNT 1
:
MURDER READ WITH THE
PROVISIONS OF SECTION 51(1) AND PART 1 OF SCHEDULE 2 OF THE CRIMINAL
LAW AMENDMENT ACT 105 OF 1997.
IN
THAT
upon or about 26 April 2021 and at
or near Dumphries Trust, in the district of Bushbuckridge, the
accused did unlawfully and intentionally
kill
ELVIS
MKANSI
, an adult male person.
[2]
The court in imposing sentence, must have
due regard to the facts of the case, and in addition thereto, must
apply certain well-established
legal principles relating to the
extent and magnitude of punishment. An awesome responsibility is
thereby vested in the Court.
[3]
The acknowledged objects and purpose of
criminal punishment are deterrent, preventive, reformative and
retributive.
[4]
What
must also be considered is the triad consisting of the crime, the
offender and the interests of society.
[1]
I am in respectful agreement with what has been stated in these
cases. The elements of the triad contain an equilibrium and a
tension. A 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 and to the exclusion of the others.
This is not merely a formula,
nor
a judicial incantation, the mere stating whereof satisfies the
requirements.
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, it’s
welfare and concern.
This conception as expounded by the courts is
sound and is incompatible with anything less. Therefore all the
elements of the triad,
although not identical are in dissociable.
[5]
The nature of the crime is of considerable
importance. It may be of such significance or so far reaching that a
lengthy period of
imprisonment is the only adequate punishment. In
passing sentence the trial court must take into account the moral and
ethical
nature of the crime, and the gravity of the offence.
It
is
accepted
and
is
indeed
logical
that
a
more
serious
crime
will
carry with it a greater
moral blameworthiness than a minor or less serious offence. This
involves a moral and value judgment. A
process of arid
intellectualism is insufficient. Mere theorising is insufficient.
What matters finally is how the court views the
crime on its own
merits, and all the relevant proven facts and circumstances must be
carefully considered and assessed.
[6]
Merely to find that a crime by itself is
serious without regard to it’s setting and it’s factual
context, and thereby
concluding that the crime committed by the
offender is therefore also serious, is not appropriate, and may
result in a serious
misdirection. The court does not and cannot rely
on a catalogue of crimes. To do so would result in a purely
mechanistic approach,
whereby the court, in it’s judicial
discretion, would fail to pay due regard to the facts and
circumstances of the particular
crime.
The
sentence therefore must be commensurate with the gravity or otherwise
of the crime, and is a necessary concomitant of punishment.
[2]
[7]
In
considering the offender, due regard must be had, inter alia, to the
following: his/her age and background; level of education,
attainment, and position in society; family circumstances, whether
married or not, and the question of dependants; motive in committing
the offence, whether for personal gain or for reasons of avarice, or
being actuated by some moral or laudable objective; whether
the
offender stood to gain by the offence; the question of the accused
being a first offender; the effect of punishment on the
offender, and
more particularly if a sentence of imprisonment is imposed; the
prospects of reformation and correction, and becoming
a useful member
of society; the presence or absence of remorse or contrition; whether
instead of imprisonment an alternative method
of punishment would not
be appropriate in the circumstances; a perceptive understanding of
the accused’s human frailties
as
effected
by
the
circumstances
surrounding
the
commission
of
the
offence
in
question
and
a
balancing
of
those
frailties
against
the
evil
of
the
offender’s deed
[3]
;
influence or encouragement of another
[4]
.
[8]
Due weight must be given to the personal
circumstances of the accused. As a general principle equal punishment
for equal offences
is to be imposed unless the personal
characteristics of the respective accused make such differentiation
necessary.
[9]
The feelings and requirements of the
community, the protection of society against the accused and other
potential offenders must
be considered, as well as the maintenance of
peace and tranquility in the land needs to be taken into account.
Whilst considering
the interests of society as a factor in
determining sentence, the interests of society should not be
over-stressed to the detriment
of the personal factors of the
accused.
I pause to mention that a
balance should be maintained between the different elements of the
triad.
[10]
It is noteworthy to mention that this triad
has been criticised as inadequate, as the role of the victim is not
emphasised. This
anomoly has caused the courts to now give serious
consideration to the victim during sentencing proceedings. This
phenomenon has
been termed as the squaring of the triad.
[11]
An
enlightened and just penal policy requires consideration of a broad
range of sentencing options from which an appropriate option
can be
selected that best fits the unique circumstances of the case before
court.
[5]
To that should be
added, it also needs to be victim-centred. Internationally the
concerns
of
victims
have
been
recognised
and
sought
to
be
addressed
through a number of declarations, the most important of which is the
UN Declaration of the Basic Principles of Justice
for Crime and Abuse
of Power.
[6]
The
Declaration is based on the philosophy that adequate recognition
should be given to victims, and that they should be treated
with
respect in the
criminal
justice system. In South Africa victim empowerment is based on
restorative justice. Restorative justice seeks to emphasise
that a
crime is
more
than the breaking of the law or offending against the State –
it is an injury or wrong done to another person.
[7]
The
underlying philosophy of the Service Charter for Victims of Crime in
South
Africa
[8]
(also referred to as
Victim’s Charter) is to give meaningful content to the rights
of all citizens, by reaffirming one of
our founding democratic values
namely human dignity.
[9]
[12]
By
accommodating the victim and/or their representative during the
sentencing process the court will be better informed before
sentencing about the after effects of the crime. The court will thus
have at its disposal information pertaining to both the accused
and
victim, and in that way hopefully a more
balanced
approach to sentencing can be achieved. Absent evidence from the
victim and/or their families, the court will only have
half of the
information necessary to properly exercise its sentencing discretion.
It is thus important that information pertaining
not just to the
objective
gravity
of the offence, but also the impact of the crime on the victim and/or
their families be placed before the court. That in
turn will
contribute to the achievement of the right sense of balance, and in
the ultimate analysis will enhance proportionality
rather than
harshness.
[10]
[13]
The conviction in this case results
from a domestic dispute between the deceased, his younger brother
Reason Mkansi, and his aged
parents, and which subsequently
culminated in an incident wherein the accused shot the deceased,
after he was requested by his
parents to intervene and assist them
with the challenges that they were facing with the deceased.
[14]
The Accused has been found guilty on one
count of Murder read with
Section 51(1)
of the
Criminal Law Amendment
Act 105 of 1997
, which prescribes the imposition of life
imprisonment, unless there are substantial
and compelling circumstances present, and
which would cause this court to deviate in the imposition of the
prescribed minimum sentence.
[15]
I have duly taken note of the fact that the
accused does not have any previous convictions, and accordingly
stands as a first offender
before this court.
[16]
Mr Mashile (‘Mashile’) informed
this court that he will be leading evidence in respect of a
pre-sentence report on behalf
of the accused. Further advising that
the accused would be testifying during the pre-sentence proceedings.
[17]
Gladness Letabo Dibakoane
(‘Dibakoane’)
a social worker in the employ of the Department of Social Development
testified,
inter alia
,
as follows:
[a]
She interviewed various family members in
order to compile her report regarding the social circumstances of the
accused, so that
an appropriate sentence may be imposed.
[b]
The accused’s family originated from
Mozambique, and settled in South Africa during 1985. The accused is
the second son of
the
eight
children born to David and Violet Ubisi.
[c]
The accused is 48 (forty eight) years old
and currently married
to
Mavis Mashaba, and they have three children born from this union. He
was previously married to Nozipho Sibuyi and had two children
from his first marriage. His eldest child
is attending the Tshwane University of Technology at Pretoria. The
second child is studying
grade 7, and the last one is in grade 4.
[d]
The accused resides with his extended
family in a 9 (nine bedroomed homestead. He has been responsible for
the payment of school
fees for the deceased’s three children,
as well as their maintenance.
[e]
The accused was employed as a game tracker
at the Thulini Lodge situated within the Sabi Sabi Game Reserve and
earned an amount
of R 5600.00 (five thousand six hundred rand) per
month. However, shortly after his arrest he was released from his
duties thereat
pending the outcome of his trial.
[f]
She interviewed family members, who stated
that they were still shocked and traumatised by the ordeal, as they
never anticipated
that something like this would happen. The
accused’s parents stated that they feel extremely frustrated
with the ordeal,
as they continually blame themselves, due to the
fact that they requested the accused to come to their assistance.
Further, they
are of the view that had they not approached the
accused for assistance, this incident would not have taken place.
[g]
The members of the community who were
interviewed indicated that the accused was a respected member of the
community. They further
indicated that the Mkansi family are
regularly involved in arguments with each other. Further that they
were upset and angry due
to the death of the deceased at the hands of
the accused.
[h]
She was of the view that the accused was
not remorseful for his actions, as he pleaded not guilty to the
charge, and according to
her
did
not show any remorse for his unlawful action.
That in essence concluded
the evidence of this witness, and her report was handed in as Exhibit
“E”.
[18]
The
Accused
testified in mitigation of sentence,
inter alia
,
as follows:
[a]
He was born on 07 July 1974 and is 48 years
old, and currently residing with his wife and 5 (five) children at
Dumphries B.
[b]
He confirmed that he was employed at the
Thulini Lodge as a game tracker and earned an amount of R 5600.00
(five thousand six hundred
rand) per month. He was suspended from his
employment
due to
the pending case against him, and worked part time thereat and earned
an amount of R 3600.00 (three thousand six hundred
rand) per month.
[c]
He is responsible for the maintenance of
his family, which includes his aged parents who are both receiving
pensions, his
siblings,
which included the deceased who was unemployed. In addition thereto
he assisted with the maintenance of the deceased’s
children
whilst he was alive, and has continued to do so after his death.
[d]
The deceased and his younger brother would
create
tremendous
amount of strife within the family once they consumed alcohol and
became intoxicated. He would continually have to reprimand
his
troublesome siblings, and he was responsible in
ensuring that everyone lived in peace and
harmony within the homestead.
[e]
He admitted that the court has made a just
decision in finding him guilty of the murder of his brother. He
admitted that he was
angry at the time, due to the fact that the
deceased had been troubling their parents. His intention was
accordingly to scare the
deceased and not
to kill him. He aimed for the deceased’s
hand and unfortunately the bullet struck the decease’s chest.
He further admitted
that the version of the deceased having a panga
in his possession was untrue, and the injuries that he had suffered
on his hand
was as a result of him being hit with the beer crate, by
the deceased.
He acknowledged that he
was guilty of his brother’s death, and pleaded to this court
that he should not be crushed by the
imposition of a severe sentence.
[f]
Dibakoane misunderstood him when she
concluded that he did not exhibit any remorse for his actions. He
accordingly feels extreme
remorse at the death of his brother.
[g]
From the date of his arrest he was warned
by the court not to return to his home and/ or to meet with his
family members. He resided
at his workplace during this time, and
until this condition was subsequently relaxed. Accordingly, he
suffered being separated
from his wife and children, as well as his
parents and siblings.
[h]
He pleaded to the court to treat him with
an element of mercy when imposing a suitable sentence upon him, as
there is no one left
at his homestead that could take care of his
family and shoulder his responsibilities.
[i]
The court should carefully consider the
fact that his mother had insisted on leaving her marital home, as a
result of the deceased’s
conduct, and strife caused by the
deceased and his younger brother.
[j]
That he made a huge mistake on the day in
question when he fired at the deceased. His intention was to threaten
and not kill the
deceased.
Further,
that
he
is
not
a
violent
person
and
that
he
has
never ever become
involved in any form of violence prior to this incident.
[k]
During cross-examination he stated that he
wanted to tell the court the entire truth, as he has self
introspected, and the death
of his brother has been haunting him.
[l]
He pleaded to the court to impose a
non-custodial sentence upon him.
That in essence concluded
the evidence of the accused.
[19]
It is noteworthy to mention that Mr Mashile
subsequently fell ill and requested Mr Silubane (‘Silubane’)
to assist him
with the finalisation of the
pre-sentence proceedings. Silubane duly
appeared on behalf of the accused and informed this court that he
intended leading the evidence
of a correctional supervision report on
behalf of the accused.
[20]
Nozibusiso Agnes Chamane
(‘Chamane’)
a social worker in the employ of the Department of Correctional
Services, Bushbuckridge Community Corrections
testified,
inter
alia
, as follows:
[a]
She compiled a report in terms of
section
276
A (i) of the CPA in respect of the accused, wherein she set out,
inter alia
,
his personal circumstances. I have duly taken these into account and
do not intend to regurgitate all of them herein, as the accused
was
called to testify regarding his personal circumstances. I do so
simply for the sake of brevity and to avoid unnecessary prolix.
[b]
Her mandate was to conduct an assessment of
the accused in order to determine whether he is a suitable candidate
to be sentenced
to correctional supervision. Her suitability report
was handed in as Exhibit “F”.
[c]
The accused’s parents, his sister
Nikiwe Mkansi and his brother Reason Mkansi, as well as the accused’s
wife all highlighted
that the accused is a loving, selfless and
caring person, and that he has always been taking good care of his
parents, his siblings
and their children, despite him having his own
family.
[d]
The deceased’s mother was interviewed
and was tearful throughout the entire interview and stated that she
found the death
of the deceased rather painful, and this pain was
further compounded by the fact that the accused has been charged with
murder,
and that it would be extremely painful to lose another son to
prison. She pleaded to this court to exercise an element of mercy
upon her, and not to allow her to lose another son.
[e]
The deceased’s father stated that he
understood the principle that there is no one above the law and that
the courts are there
to
serve
justice. However, having due regard to the particular facts of this
case, if the accused were to be sentenced to imprisonment
it would
result in a double tragedy for his family. He pleaded with the court
to be merciful towards him and his family, and to
exempt him from
further pain, and not to sentence his son to imprisonment.
[f]
The accused’s sister, Nikiwe and
brother Reason have also pleaded for this court to exercise an
element of mercy when imposing
a suitable sentence upon the accused.
The family members have stated that if the accused were to be
sentenced to a long term of
imprisonment, it would result in severe
hardship to the entire family. Accordingly, pleading that he be given
a non-custodial sentence
having due regard to all their personal
family circumstances.
[g]
She dealt with the evaluation/assessment of
the accused regarding his suitability for correctional supervision,
and noted that the
accused
has
taken
full
responsibility
for
his
actions
and
criminal behaviour. Further, that the
accused is aware of the seriousness of the conviction and the impact
it may have on his life.
[h]
She was of the view that the accused meets
the necessary requirements, but made no further recommendations in
the report and left
it to the court to make a final decision
regarding this sentencing option.
That in essence concluded
the evidence of this witness.
[20]
Mr
Silubane
further
informed
this
court
that
he
will
be
leading
the
evidence of the accused’s father in
mitigation of sentence.
[21]
David Mkansi
(‘Mkansi’)
the accused’s father testified on behalf of the accused in
mitigation of sentence, inter alia, as follows:
[a]
He confirmed that the accused was
responsible for the care and maintenance of the deceased’s
three children, as a result of
the unfortunate accident that happened
at his homestead on 26 April 2021. Further, that the mother’s
of the deceased’s
children are unemployed and hence rely solely
upon the accused to support their children.
[b]
The accused is responsible for the
maintenance of both himself and his aged wife, as their pensions are
insufficient to sustain
themselves.
[c]
He stated that if the accused were to be
imprisoned it would be the same as if he were dead. He would then
have to take over the
accused’s family responsibility, and
would have to take care of the accused’s wife and children, as
well as the deceased’s
children.
Adding further that he would simply not be
able to shoulder such responsibility, and would not be able to cope
financially, due
to his advanced age. Essentially, making the point
that his family would be ruined and face devastation.
[d]
He pleaded repeatedly that the court take
into account both his and his wife’s advanced age, and
carefully consider this fact
when imposing a sentence upon their son.
Further, crying and pleading to
this
court that it impose a non-custodial sentence upon the accused, as
they would both rather die, if the accused were sentenced
to
imprisonment.
[e]
The unfortunate incident took place as a
result of the conduct of the deceased, who he described as
troublesome. He described the
deceased as a person who was negatively
influenced when he consumed alcohol. He would return home late and
then begin arguing and
demanding food from his aged mother. Due to
the deceased’s behaviour just prior to his death, his wife had
to sleep at the
neighbours homestead.
[f]
The accused was called to assist in
reprimanding the deceased and his younger brother. Instead of
behaving and listening to the
accused, the deceased became
uncontrollable during the family meeting.
[g]
That he held both himself and his wife
responsible for what transpired on that fateful day, and begged this
court to incarcerate
the both off them, and not the accused.
[h]
The court requested his input regarding the
feelings and
reaction
of the community, in the event that the accused were given a
non-custodial sentence. He was of the view that the community
would
accept such a sentence, as they are full well aware of what had
transpired and have been privy of the deceased’s wayward
conduct. In addition thereto, the community is aware that the accused
is a responsible person, and that he found himself in this
situation
not out of his own making.
That in essence concluded
the evidence of this witness, and the case for the defence in
mitigation of sentence was duly closed.
[22]
Mr Silubane made the following submissions,
inter alia
,
on behalf of the accused, in mitigation of sentence:
[a]
The court take into account that the person
who lost his life is
the
accused’s brother, and that they have the same parents.
[b]
The accused has been taking care of the
deceased’s family, as well as the other members of his
immediate family.
[c]
It is clear from all the evidence that the
accused is a responsible person and has never defaulted in his
responsibilities.
[d]
The aged parents have pleaded to this court
to impose a non- custodial sentence upon the accused, and that this
has been the request
from all the accused’s family. Further,
that the parents have stated that they would not be able to bear the
loss of two
of their sons.
[e]
The accused is gainfully employed for many
years with the
same
employer, and this shows stability and great responsibility on the
part of the accused.
[f]
That the personal circumstances of the
accused together with the mitigating factors can be cumulatively
regarded as substantial
and compelling circumstances, and which would
cause this court to deviate from the imposition of the prescribed
minimum sentence.
That in essence concluded
the submissions on behalf of the accused.
[23]
Mr
Mkhulise,
in
support
of
aggravation
of
sentence
submitted,
inter
alia
, as follows:
[a]
Submitting that the personal circumstances
of the accused are not in dispute. Further, that it is clear that the
accused is a first
offender,
and that he lived an honest and responsible life, thus far.
[b]
The court take into account the
circumstances under which this crime was committed. However, the
court should be mindful of the
fact that this is a serious crime and
that a firearm was used.
[c]
That the accused pleaded not guilty in the
face of an open and shut case, and only took this court into his
confidence during the
pre- sentencing proceedings.
[d]
Conceding that there are clearly
substantial and compelling circumstances that would cause this court
to deviate in the imposition
of
the prescribed minimum sentence.
That in essence concluded
the submissions of the State in aggravation of sentence.
[24]
In
the seminal judgment of
S
v Malgas
[11]
at
paragraphs 7 and 8, the following was said per Marais JA regarding
the provisions of the Minimum Sentence legislation: “The
very
fact that this amending legislation has been enacted indicates
that
parliament was not content with that and that it was no longer to be
“business as usual” when sentencing
for
the
commission
of
the
specified
crimes”.
“
In
what respects was it no longer to be business as usual?
First, a court was not to be given a clean
slate on which to inscribe whatever sentence it thought fit. Instead,
it was required
to approach that question conscious of the fact that
the legislature has ordained life imprisonment or the particular
prescribed
period of imprisonment as the sentence which should
ordinarily be imposed for the commission of the listed crimes in the
specified
circumstances.
In
short, the legislature aimed at ensuring a severe, standardised, and
consistent response from the courts to
the
commission of such crimes unless there were, and could be seen to be,
truly convincing reasons for a different response.
When considering sentence the emphasis was
to be shifted to the objective gravity of the type of crime and the
public’s need
for effective sanctions against it.
But that did not mean that all other
considerations were to be ignored.
The
residual discretion to decline to pass the sentence which the
commission of such an offence would ordinarily attract plainly
was
given to the courts in recognition of the easily foreseeable
injustices which could result from obliging them to pass the
specified sentences come what may”.
“
Secondly,
a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal to
impose the
specified sentence….Moreover, those circumstances had to be
substantial and compelling.
Whatever
nuances of meaning may lurk in those words, their central thrust
seems obvious.
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny.
Speculative hypotheses favourable to the
offender, maudlin sympathy, aversion to imprisoning first offenders,
personal doubts as
to 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.
Nor were marginal
differences in the personal circumstances or degrees of participation
of co- offenders which, but for the provisions,
might have justified
differentiating between them. But for the rest I can see no warrant
for deducing that the legislature intended
a court to exclude from
consideration, ante omnia as it were, any or all of the many factors
traditionally and rightly taken into
account by courts when
sentencing offenders. The use of the epithets “substantial”
and “compelling” cannot
be interpreted as excluding even
from consideration any of those factors. They are neither notionally
nor linguistically appropriate
to achieve that. What they are apt to
convey, is that the ultimate cumulative impact of those circumstances
must be such as to
justify a departure.
It is axiomatic in the
normal process of sentencing that, while each of a number of
mitigating factors when viewed in isolation
may have little
persuasive force, their combined impact may be considerable.
Parliament cannot have been ignorant of that. There
is no indication
in the language it has employed that it intended the enquiry into the
possible existence of substantial and compelling
circumstances
justifying a departure, to proceed in a radically different way,
namely, by eliminating at the very threshold of
the enquiry one or
more factors traditionally and rightly taken into consideration when
assessing sentence. None of those factors
have been singled out
either expressly or impliedly for exclusion from consideration”.
[25]
In
S
v Malgas
supra,
S
v Dodo
[12]
and
S
v Vilakazi
[13]
regarding
the imposition of an appropriate and proportional sentence in the
context of the prescribed minimum sentence of life imprisonment
and
the “determination” for when the prescribed sentence may
be departed from. The following extract from
Vilakazi
,
paragraph
3
is
apposite:
“…
the
Constitutional
Court
reminded
us
in
S
v
Dodo
that
punishment
must
always
be
proportionate
to
the
deserts
of
the
particular
offender – no less but also no more – for all human
beings ought to be treated as ends in themselves, never
merely as
means to an end”.
[26]
Mercy
is regarded as a concomitant of justice. In
S
v Rabie
[14]
at 861 D et seq, Holmes JA stated: “Then there is the approach
of mercy or compassion or plain humanity.
It
has
nothing
in
common
with
maudlin
sympathy
for
the
accused.
While
recognising that fair punishment may sometimes have to be robust,
mercy is a balanced and humane
quality
of
thought
which
tempers
one’s
approach
when
considering
the
basic
factors
of
letting
the
punishment
fit
the
criminal,
as
well
as
the
crime,
and
being
fair
to
society”.
[27]
It
is trite that sentencing is generally a matter of discretion left in
the hands of the court-passing sentence. The discretion,
however, may
not be exercised arbitrarily, but reasonably and judicially within
the parameters of legislative prescription. Given
the current levels
of violence and serious
crimes
in this country, it seems proper that, in sentencing especially such
crimes, the emphasis should be on retribution and deterrence.
[15]
Retribution may even be decisive.
[16]
[28]
What
appears from the aforementioned cases is that in our law retribution
and deterrence are proper purposes of punishment and they
must be
accorded due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded
equal weight,
but instead
proper
weight
must
be
accorded
to
each
according
to
the circumstances.
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
[17]
.
[29]
In
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) the Court
reiterated at paragraph 8 that:
“
A
sentence of imprisonment for life, irrespective of the policies and
procedures to which such sentence may be subjected by the
Department
of Correctional Services, must be regarded by the Court imposing it
as having the potential consequence, at the very
least, that the
accused so sentenced will indeed be incarcerated until his death. It
is an extreme sentence. It is the most severe
sentence, which may
lawfully be imposed on an accused such as the one now before Court.
It is a sentence which, in the ordinary
course, requires a meticulous
weighing of all relevant factors before a decision to impose it can
be justified.’
[30]
It is equally important to remind ourselves
that sentencing should always be considered and passed
dispassionately, objectively
and upon a consideration of all relevant
factors. Public sentiment cannot be ignored, but it can never be
permitted to displace
the careful judgment and fine balancing that is
involved at arriving at an appropriate sentence. Courts must
therefore always strive
to arrive at a sentence, which is just and
fair to both the victim and the perpetrator, has regard to the nature
of the crime and
takes account
of
the interests of society.
[31]
Sentencing
involves a very high degree of responsibility, which should be
carried out with equanimity. I am reminded of the comments
of Corbett
JA in
S
v
Rabie
[18]
“ a judicial officer should not approach punishment in a spirit
of anger, because,
being
human,
that
will
make
it
difficult
for
him
to
achieve
that
delicate
balance
between the crime, criminal and the interest of society which his
task and the objects of punishment
demand
of
him.
Nor
should
he
strive
after
severity;
nor,
on
the
other
hand,
surrender
himself
to
misplaced
pity.
While
not
flinching
from
firmness,
where
firmness
is
called for, he should approach his task with a humane and
compassionate understanding of
human
frailties
and
the
pressures
of
society
which
contribute
to
criminality”.
[32]
“
There
is moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct but that does not without
more
translate to genuine remorse. Remorse is a gnawing pain of conscience
for the plight of another. Thus genuine contrition can
only come from
an appreciation and acknowledgment 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. It is to the surrounding actions
of the accused
rather than what he says in court that one should
rather
look. 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. Until and unless that happens the
genuiness of the contrition alleged to exist cannot be
determined”.
[19]
It is clear that the
accused did not take this court into his confidence during the trial.
However, this changed drastically when
he testified during the pre-
sentence proceedings, and laid his chest bare to the court whereby he
agreed with his conviction,
and exhibited remorse for his unlawful
action.
Accordingly, in my view
he has taken this court fully into his confidence, and as such the
genuiness of any contrition alleged to
exist can be determined,
albeit
. at a late stage in the trial. It was clear from the
general demeanour of the accused during the entire trial that he had
a gnawing
pain of conscience for the plight of the deceased’s
family. To this end, I am reminded of the fact that he has been
supporting
the deceased’s three children and their respective
mothers. Therefore, I am inclined to conclude that the accused is
clearly
remorseful and regrets his actions.
[32]
It is noteworthy to mention that this court
is duly enjoined to look at the aggravating and mitigating
circumstances and once these
are carefully considered, to determine
as to whether there are substantial and compelling circumstances that
will cause it to deviate
from the imposition of the prescribed
minimum sentence of life imprisonment.
[33]
The court will bear in mind that there is
no onus placed on the accused to prove the presence of substantial
and compelling circumstances,
or on the State to prove the absence of
such substantial and compelling circumstances. However, there rests a
clear duty on an
accused to produce evidence to convince the court
that circumstances exist, which justify the imposition of a lesser
sentence.
It stands to reason that such substantial and compelling
circumstances may also be inferred to be present in the State’s
case or in evidence presented by State witnesses or by the
prosecution itself. If no factual basis is laid for a finding that
substantial
and compelling circumstances exist which justify the
imposition of a lesser sentence than the prescribed sentence, it
follows that
a court will be obliged under the statutory provisions
to impose the prescribed sentence.
[36]
I have duly given due cognisance to the
principles that need to be applied when imposing a suitable
punishment upon the accused
I have carefully looked at the
aggravating as opposed to the mitigating factors, and have taken all
other circumstances and factors
relevant to sentencing and measured
it against the composite yardstick (“substantial and
compelling), in order to properly
determine whether the
aforementioned cumulatively justify a departure from the standardised
response that the legislature has ordained.
[37]
After careful consideration of all the
evidence before me, and taking into account all the aggravating and
mitigating and other
factors that I am required to take into account,
I am of the view that as far as the accused is concerned, there are
substantially
compelling circumstances which exist, and which would
justify a refusal to impose the specified sentence.
[38]
To this end, I have duly taken into
consideration the following substantial and compelling facts, which I
am required to place on
record, and which have impelled me to
conclude that there should be a deviation from the imposition of the
prescribed minimum sentence
upon the accused:
[a]
The extraordinary nature and the
circumstances of the crime.
[b]
The dynamics of the accused’s
extended family, and the events which preceded and culminated in the
shooting of the deceased.
[c]
The accused has lost a brother and has
exhibited remorse and contrition, and accordingly has taken it upon
himself to support the
deceased’s children and their respective
mother’s.
[d]
The evidence in respect of the personal
circumstances of the accused, and more especially his good character
and general disposition.
[e]
The fact that the accused is a first
offender, and has been a responsible member of society. Further, that
he has been regarded
as a responsible member of his family.
[f]
The heart wrenching evidence by the
accused’s aged father wherein he pleaded to this court that
both himself and his wife
not be punished twice, and that the accused
be given a non-custodial sentence. To this end, I pause to mention
that this court
was steeped in the atmosphere of the trial and
pre-sentence proceedings, and more so when the accused’s father
testified.
I deem it important that I place on record that the father
was highly emotional, and the mother lost control of herself during
the proceedings. To this end, I am reminded of the many occasions
that the proceedings were disrupted by the mother crawling from
the
gallery on her stomach, in order to join the accused
in the dock and to plead to this court to
exercise mercy upon the accused.
[g]
It was clear to this court that both the
parents relied very heavily upon the accused for their emotional
wellbeing, as he was the
only one who was able to calm them down
during the proceedings.
[h]
The submissions made by the accused’s
siblings regarding the fact that they do not deem it appropriate that
he be imprisoned,
as the family would suffer severe hardship, as well
as emotional and financial distress.
[i]
There is no evidence before me during the
pre-sentence proceedings to support the call that the accused needs
to be removed from
society, and that he is a candidate for direct
imprisonment.
[j]
The personal circumstances of the accused,
as well as the totality of the evidence before me, including the
unique circumstances
of this case clearly call for a deviation from
the imposition of the minimum sentence.
[k]
The killing of the deceased has directly
affected the accused
and
his family, and does not directly impact and affect the greater
community at large, as it is not a crime that has been perpetrated
against a member of the community.
[l]
The impact that a term of direct
imprisonment is likely to have on the interests of his and that of
the deceased’s minor children,
and the due consideration of the
best interests of the children.
[m]
The accused is a suitable candidate for
rehabilitation.
Accordingly, it is for
the aforementioned reasons that I believe it appropriate to depart
from the imposition of the prescribed
minimum sentence of life
imprisonment.
[39]
Accordingly, having found substantial and
compelling circumstances present it is trite that this calls for a
different response,
as I am no longer required to proceed in terms of
the provisions of the minimum sentence legislation, and may therefore
exercise
my discretion, as I am required to do
in imposing a suitable sentence upon the
accused.
[40]
The principles of sentencing in Hiemstra’s
Criminal Procedure, issue 11 at 28-8 (1) are explained as follows:
“
At
the sentencing phase, other considerations apply. Now it is the
judicial officer’s difficult task to determine fairly the
accused’s fate. While it is still part of the trial and
consequently subject to the general provisions thereanent, the
process
of sentencing is of a different nature:
(a)
it is not a clinical exercise as is
that of determining the merits;
(b)
there are no demarcated points in
dispute and formal satisfaction of burdens of proof;
(c)
impressions are central, not facts;
(d)
it is possible to have regard to
considerations which were irrelevant to the merits (such as, for
instance, motive);
(e)
the person of the accused is
specifically considered, including his or her character and general
conduct in life, not only the act
in question;
(f)
it is mainly a probe into the
future, while in respect of the merits the court considered past
conduct; and
(g)
a complex value-judgment must be
made in which the four aims of punishment must be considered in
conjunction
with
each other and with regard to the Zinn triad.
”
[41]
In
S v Banda
1991 (2) SACR 325
(B)
Friedman J stated
the following:
“
The
court fulfills an important function in applying the law in the
community. It has the duty to maintain law and order. The court
operates in society and its decisions have an impact on individuals
in the ordinary circumstances of daily life. It covers all
possible
ground. There is no space in life it does not include. The court must
also by its decisions, and imposition of sentence,
promote the
respect for the law, and in doing so must reflect the seriousness of
the offence, and provide just punishment for the
offender while
taking into account the personal circumstances of the offender. The
feelings and the
requirements
of the community, the protection of society against the accused and
other potential offenders must be considered, as
well as the
maintenance of peace and tranquility in the land needs to be taken
into account”.
[42]
It has been submitted on behalf of the
accused that he is a suitable candidate to be sentenced to
correctional supervision in terms
of
section 276
(1) (h) of the CPA.
Section 276
(1) (h) and (i) of Act 51 of 1977 reads as follows:
“
Subject
to the provisions of this Act and any other law and of the common
law, the following sentences may be passed upon a person
convicted of
any offence, namely:
(h)
correctional supervision;
(i)
imprisonment
from
which
such
a
person
may
be
placed
under
correctional supervision in his
discretion by the Commissioner”
[43]
In
Samuels v S
2011 (1) SACR 9
(SCA)
at paragraphs 9
-10 Ponnan JA held as follows:
“
It
is trite that the determination of an appropriate sentence requires
that proper regard be had to the well known triad of the
crime, the
offender and the interests of the society. After all any sentence
must be individualised and
each
matter must be dealt with on its own peculiar facts. It must also in
fitting cases be tempered with mercy. Circumstances vary
and
punishment must ultimately fit the true seriousness of the crime. The
interests of society are never well served by too harsh
or too
lenient a sentence. A balance has to be struck…..Sentencing
courts must differentiate between those offenders who
ought to be
removed from society and those who although deserving of punishment
should not be removed. With appropriate conditions
correctional
supervision can be made a suitably severe punishment even for persons
convicted of serious offences”.
[44]
In
S v
Aspeling
1998 (1) SACR 561
CPD at page 576 b – f
the
Appeal court stated as follows, when it
overturned the sentence of the trial court:
“
In
considering whether a sentence of correctional supervision is an
appropriate punishment for a first offender the question to
be
answered is: ‘Whether the particular offender should, having
regard to his personal circumstances, the nature of the crime
and the
interests of the society, be removed from the community’……..‘Having
regard to appellant’s
personal circumstances and the nature and
mitigating factors relating to the offences he committed, the
interests of society, in
my opinion, do not require that appellant be
removed from the community for any substantial time. Consequently the
appeal against
both sentences should succeed and in respect of both
offences a sentence in terms of s 276 (1) (i) of Act 51 of 1977
should be
imposed. This will give the accused the opportunity to
persuade the prison authorities that he should be subjected to
correctional
supervision”.
[45]
The imposition of correctional supervision
is provided for in
section 276(1)(h)
of the
Criminal Procedure Act,
51 of 1977
and falls under the general rubric of community
corrections addressed in chapter VI of the
Correctional Services Act,
111 of 1998
(‘CSA’). The laudable objectives of community
corrections are recorded in
section 50(1)(a)
of the CSA as being:
“
(i)
to afford sentenced offenders an opportunity to
serve their sentences in a non- custodial manner;
(ii)
to enable persons subject to community
corrections to lead a socially responsible and crime free life during
the period of their
sentence and in future;
(iii)
to enable persons subject to community
corrections to be rehabilitated in a manner that best keeps them as
an integral part of society;
and
(iv)
to enable persons subject to community
corrections to be fully integrated into society when they have
completed their sentences.”
[45]
In
S v Ingram
1995 (1) SACR 1
(A) at 9 d – e
,
the court held that the introduction of correctional supervision has
sought to distinguish between two types of offenders: those
who
should be removed from society and
imprisoned and those who, although
deserving of punishment, should not be removed.
[46]
In
S v Samuels
supra, the Supreme Court of Appeal held
that “
with appropriate
conditions, correctional supervision can be made a suitably
severe punishment, even for persons
convicted of serious offences”
.
The SCA again referred to
this case recently in
Botha v The State
2017 ZASCA 148
at para
46, when it held in circumstances that are notably similar to those
applicable in the current matter that the applicant,
who was also
found guilty of murder to which a mandatory minimum sentence would
otherwise have applied….. “…
..certainly does
not fall within the category of persons who need to be removed from
the society. Imprisonment could, and probably
would, have a
devastating effect on her, particularly taking into consideration
that over a period of 30 years she was subjected
to assaults
and abuse by the deceased. I am of the view, in all the
circumstances, considerations should be given to the imposition of a
sentence
under
s 276(1)(h)
”
.
[47]
In
Botha v The
State
1995 (1) SACR 9
(SCA)
, it was
held that “
the courts should be
cautious not to debase the currency of correctional supervision as a
form of punishment, especially in the
case of serious offences, if
however, it is used in appropriate cases and applied to those likely
to respond positively to its
regimen, it can serve to protect society
without the destructive impact incarceration can have on a convicted
person’s innocent
family members”
.
[48]
I pause to mention that a court will
consider imposing correctional supervision particularly if the crime
is too serious for only
a suspended sentence, and if the court is of
the view that the more personal attention, inherent in correctional
supervision, may
be beneficial to the offender and eventually the
community as well.
I
have duly noted various literature on the subject, and have noted
that in contrast to imprisonment, correctional supervision has,
among
others, the following advantages:
[20]
[a]
The
probationer
can
benefit
to
the
greater
extent
from
the
normalising influences of the community.
[b]
The
probationer
is
not
exposed
to
the
negative
influences
of
hardened criminals and the prison sub-culture.
[c]
The
rehabilitation
process
takes
place
within
the
community
where the best results are obtained.
[d]
It is a more cost effective sentence.
[e]
There is less pressure on available prison
space.
[f]
The isolating effect and the stigma
attached to imprisonment are avoided.
[g]
To
a
large
extent
some
negative
results
of
imprisonment
are
eliminated, for example:
·
Loss of self respect;
·
Loss of income resulting in the inability
to provide for the family;
·
Breaking up of family life, etc.
[49]
I now turn to examine
Section 276A
of the
CPA which makes it peremptory that a term of punishment in terms of
section 276
(1) (i) must not exceed a period of five years. I am of
the firm view that the imposition of a sentence of correctional
supervison
in terms of this section will not be in the interests of
justice, in this case. I am of the further view that such a sentence
will
surely bring the administration of justice into disrepute.
[50]
I am reminded of what Sachs J stated in
S
v M
[2007] ZACC 18
;
2007 (2) SACR 539
(CC)
at page 568
para 59 as follows: “
[59]
Correctional supervision is a multifaceted approach to sentencing
comprising elements of rehabilitation, reparation and restorative
justice, The South Africn Law Commission (SALC) has underlined the
importance of correctional supervision, observing: ‘ There
is
increasing recognition that community sentences, of which reparation
and service to others are prominent components, form part
of an
African Tradition and can be invoked in a unique modern form to deal
with many crimes that
are
currently sanctioned by expensive and unproductive terms of
imprisonment’.”
[51]
I am further reminded of the comments of
Scott JA in
S
v
Ningi
2000 (2) SACR 511
(A)
at
para 8:
“
The
question is, therefore, whether in all the circumstances a sentence
of correctional supervision would be appropriate. It is
unnecessary
to repeat what has been said before of the advantages of correctional
supervision.
They
are
well
known.
What
I
think
must
be acknowledged, however, is that in
so far as a first offender in particular is concerned and leaving
aside for the moment the
practicalities of administering a
non-custodial sentence, whether correctional supervision as opposed
to direct imprisonment is
to be imposed must depend ultimately on the
seriousness of the offence and the particular circumstances in which
it was committed.
This is so because, whatever its advantages,
correctional supervision remains a lighter sentence than direct
imprisonment. Any
contention to the contrary I think would be
unrealistic.”
[52]
Having due regard to the cases which I have
delat with hereinabove it is clear that the existence of a mandatory
minimum sentence
does not, in itself, exclude a conclusion that
correctional supervision is potentially an appropriate sentence when
substantial
and compelling circumstances are indeed found to exist.
[53]
It is clear in my mind, having due regard
to and considering the totality of the facts before me, that the
accused is not an individual
that needs to be removed from society.
Therefore, in my view a sentence needs to be imposed that would
clearly take into account
the seriousness of the crime, as well as
taking into account the personal circumstances of the accused and the
interests of society,
and to that it must be added the interest of
the deceased and/or his family.
Accordingly, I am mindful
of the difficult and fine balancing act that one has to perform in
order to give credence to the aforementioned
principles, in order to
properly exercise one’s discretion in imposing a suitable
sentence upon the accused.
[54]
Consequently, I have duly taken into
account and given credence to
the
evidence that has been presented, having due regard to the triad as
espoused in
S v Zinn
supra,
together with the overall impact on the deceased’s family, when
considering a suitable sentence to be imposed. I have
carefully
considered the mitigating and aggravating factors present in this
case,
whilst
carefully
weighing
and
balancing
them
against
each
other.
I
have taken all the factors that are necessary, and as I am required
to do, in
the
determination of a suitable sentence to be imposed upon the accused.
[54]
In the result the accused is sentenced as
follows:
[54.1]
COUNT 1
:
MURDER READ WITH THE
PROVISIONS OF SECTION 51(1) AND PART 1 OF SCHEDULE 2 OF THE
CRIMINAL
LAW AMENDMENT ACT 105 OF 1997
15 (FIFTEEN) YEARS
IMPRISONMENT WHICH IS SUSPENDED FOR A PERIOD OF 10 (TEN) YEARS ON
CONDITION THAT THE ACCUSED IS NOT CONVICTED
OF AN OFFENCE INVOLVING
VIOLENCE DURING THE PERIOD OF SUSPENSION.
[54.2] In addition
thereto, the accused is sentenced to undergo correctional supervision
in terms of
section 276
(1) (h) of the
Criminal Procedure Act 51 of
1977
, read together with the provisions of
section 52
of the
Correctional Services Act 111 of 1998
, on the following conditions:
[a]
The accused be placed under house arrest
for the duration of his sentence with due consideration to his
employment, co-operation
in general and other relevant circumstances.
[b]
The accused may not leave the magisterial
district in which he resides without the prior approval of Mr J H
Ngobese, the Head Community
Corrections, except for the purposes of
essential work or other reasons, in the discretion of the National
Commissioner.
[c]
The accused shall continue to care for and
maintain the deceased’s three children up until they attain the
age of majority.
[d]
The accused shall perform 576 (five hundred
and seventy six) hours of free community service at a community
institution, to be determined
by the Head Community Corrections, for
the duration of 16 (sixteen) hours per month.
[e]
The accused shall attend the following
programmes or lectures offered by the Department of Correctional
Services and/or other welfare
departments, as follows:
(i)
financial management;
(ii)
dealing with conflict;
(iii)
communication and self-conduct;
(iv)
social functioning programmes;
(v)
career ability and methods of obtaining a
job;
(vi)
recreation/education programmes;
(vii)
life skills programmes.
[f]
The accused is not allowed to visit places
where alcohol is sold and consumed. Further, the use of alcohol and
drugs is strictly
prohibited.
[g]
The
accused
shall
be
monitored
by
correctional
official, C M Mabasa and/or appointed
volunteers of the Bushbuckridge Community Corrections by means of:
(i)
telephonic
supervision
at
the
workplace
and
at
home;
(ii)
visits to the workplace;
(iii)
visits
to
the
probationer’s
residence
(including after-hours visits);
(iv)
compulsory
visits by
the probationer to
the community corrections
office for consultation.
[h]
The accused is to reside at a suitable
fixed address for the duration of his term of supervision, and should
notify the Head of
Community Corrections, Mr J H Ngobese before
change of his residential address.
[i]
The accused is required to remain employed
and that he should comply with the conditions of his employment. He
may not leave his
employment without notifying the Reintegration Case
Management Supervisor, Mr K M Ngomane.
[54.3] In addition to the
aforementioned conditions, the accused is ordered to participate in
long term psychotherapy, with a focus
on behaviour, anger management,
and insight-orientated interventions offered by the Department of
Correctional Services; and that
he further participate in other
appropriate programmes/courses offered by the Department of
Correctional Services.
[54.4] In terms of
Section 103(1)(g)
of the
Firearms Control Act 60 of 2000
, the court
makes no order. The accused is hereby deemed unfit to possess a
firearm.
[a]
In terms of
Section 103(4)
of Act 60 of
2000, the court issues a search and seizure order for competency
certificates, licences, authorisations and permits,
firearms and
ammunition.
[b]
The Assistant Registrar is ordered to
inform the Registrar: Central Firearms Control Register in writing of
this order.
[54.5] A copy of the
judgment and sentence be forwarded to the Department of Correctional
Services, and be reviewed when considering
relevant programmes and
psychological treatment for the accused.
C I MOOSA
JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION,
MBOMBELA WEDNESDAY,
07 DECEMBER 2022
Counsel
for State:
Adv
C Mkhulise
Instructed
by:
Director
of Public Prosecutions Mbombela
Mpumalanga
Counsel
for Accused:
Mr
B Silubane
Instructed
by:
AB
Mdluli Attorneys Bushbuckridge Mpumalanga
Date
of hearing:
02
November 2022
04
November 2022
29
November 2022
10
January 2022
28
March 2022
29
March 2022
06
April 2022
16
May 2022
20
June 2022
22
June 2022
23
June 2022
12
August 2022
07
December 2022
Date
of judgment:
07
December 2022
[1]
S
v Zinn
1969 (2) SA 537
(A) at 540G; S v Scheepers
1977 (2) SA 154
(A)
[2]
S
v Haasbroek 1969 (1) SA 356 (E)
[3]
S
v Sigwahla
1967 (4) SA 566
(A) at 571 E-F
[4]
S
v Lehnberg en ‘n Ander
1975 (4) SA 533
(A)
[5]
Samuels
v The State [2010] ZASCA 113
[6]
Resolution
40/34 Adopted by the General Assembly on 29 November 1985
[7]
SA
Law Commission Discussion Paper 7 Sentencing Restorative Justice
(1997)
[8]
Approved
by Cabinet on 2 December 2004
[9]
S
7(1) of the Constitution 108 of 1996
[10]
S
v Matyityi
2011 (1) SACR 40
(SCA) paragraph 17
[11]
2001
(1) SACR 469
SCA
[12]
2001
(1) SACR 594 (CC)
[13]
2009
(1) SACR 552
(SCA)
[14]
1975
(4) SA (A)
[15]
S
v Mhlakaza and Another
1997 (1) SACR 515
(SCA) at 519 d - e
[16]
S
v Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 749 C - D
[17]
S
v Swart 2004 (2) SACR 370 (SCA)
[18]
1975
(4) SA 855
(A) at 866 A-C
[19]
S
v Matyityi supra at 53 A-D
[20]
Criminal
Law & Procedure by Lt-Col Elsa Jones, De Rebus 1993