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[2022] ZAECMKHC 19
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S v Billa (20/2022) [2022] ZAECMKHC 19 (12 May 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION,
MAKHANDA)
Not Reportable
Case no: 20/2022
In the matter between:
THE
STATE
and
GERMAN
BILLA
Accused
SENTENCE
Govindjee J Background
[1]
Mr
Billa pleaded guilty to charges of murder, robbery (with aggravating
circumstances as defined in s 1 of the Criminal Procedure
Act,
1977
[1]
(‘the Act’))
and
unlawfully
entering and remaining in the Republic of South Africa in
contravention of
s
49(1)
(a)
of
the
Immigration Act, 2002
.
[2]
His plea was accepted by the prosecutor
and,
in terms of s 112 of the Act, he was convicted on
all
counts on the basis of a
signed
statement setting out various admitted facts.
[2]
Mr Billa is a 28-year-old Mozambican adult.
He was contacted by Nelson Shelauli (‘Shelauli’), a
former school friend,
during May 2021. Shelauli met with him in
Nelspruit and told him about a house in East London containing a safe
loaded with
cash.
After initially refusing, Mr Billa agreed to accompany him in the
hope of becoming wealthy. He knew then that this was money
to which
he had no claim.
[3]
Shelauli shared with Mr Billa WhatsApp
voice notes with his contact and friend
in
East London (‘Nico’) indicating plans to obtain the money
from the house. Shelauli
advised
Mr Billa that the house was unoccupied. Upon arrival in East London,
Shelauli took Mr Billa to meet Nico, who took them
to a large house
indicated as the
target.
They visited the house during the day and at night.
[4]
After two days, they returned to the house
at approximately 19h00. Shelauli was armed with a black firearm. Nico
was sent to see
if a room occupied by the owner’s son was
vacant. He communicated with Shelauli using WhatsApp, advising
that the room was unoccupied but that there
was a cell phone and laptop visible.
[5]
Upon entering that room, Mr Billa was
surprised and discomforted to find the son inside. He foresaw the
possibility of resistance
from the occupiers, including the
possibility of shooting taking place. The
son was tied up with shoe laces and taken to an upstairs room. The
home owner heard this
and asked what was happening. Mr
Billa was nervous as he observed that the
owner was carrying a firearm. He then saw Shelauli firing two shots
at the owner, who
fell down, his firearm dropping to the
floor.
[6]
All the family members were tied up using
shoelaces, other than a baby girl and
the
injured owner. Mr Billa was still nervous and shaking. He observed
Shelauli and
Nico
taking the lady of the house and the elder son to the room containing
a safe, while he remained in the dining room
with the other members of the household.
When
Shelauli
realised that Mr Billa was nervous, he assaulted him with an open
hand. After some time, the other two returned with a
school bag and
laptop bag. The three
left the house with
the bags and three bicycles and returned to Nico’s house. When
the bags were emptied, he observed laptops,
cell phones, the owner’s firearm and other things.
[7]
A few days later, Mr Billa received his
share: he was given a black cell phone to use, and Shelauli informed
him that he had wasted
his money by bringing him to East London. Mr
Billa’s statement indicated that he had panicked when he
realised that there
were people in the house. This was not part of
the plan but he had not done anything to extricate himself from the
situation. He
eventually returned to Nelspruit.
[8]
Mr Billa stated that: ‘I knew at the
time of being involved with Nelson and Nico
in the commission of the crime that it was
unlawful and is punishable by law, but I nevertheless continued with
my actions and associated
myself with their actions by assisting them
when we went to commit robbery and the deceased got shot in the
process. I associated
myself with the actions of my co-perpetrators
as I also did nothing to save the deceased and his family.’
When approached
by the police two months later, during July 2021, he
immediately admitted to the crimes and explained
what had occurred. He became aware that the
home owner had succumbed to his injuries on the day of the incident.
He offered an apology
to the court and the family
of the deceased as part of his statement,
indicating that he felt remorse for what had
transpired.
[9]
Mr
Billa
also
indicated that he
had not obtained the necessary papers to be able
to remain in South Africa from the
Department of Home Affairs. After being found guilty, the state
proved a prior conviction in
this respect, for which he had been
fined
R1500.
Aggravation and
mitigation
[10]
Dr Solomon Zondi testified that he was the
Chief Medical Officer at Forensic Pathology Services in Woodbrook,
East London. He had
conducted a post-mortem examination on the body
of J[....]1 J[....]2 (‘the deceased’) on 17 May
2021.
The
uncontested chief post-mortem findings, supported
by a photo album and diagrams
accepted
into evidence, were the following:
·
A projectile had entered the deceased’s
left lateral chest wall, had perforated
the
left dome of the diaphragm, descending into the colon and left kidney
and
exiting on
the left posterior lumbar region.
·
A second projectile had entered the left
thigh, medially, traversing the thigh muscles, from left to right in
an upward direction,
exiting on the left medial aspect of the
buttock.
·
The
cause
of
death
was
the abdominal injuries caused to the left kidney,
which
had been
injured as a result of the gunshot wound to the left chest wall.
·
The
deceased,
who
had
seemingly
been a person of good health, barring high
blood pressure, was likely to have suffered
a slow and painful death. This was
caused
by the gunshot at close range, which had permeated the colon and the
kidney, resulting in multiple organ failure and the
deceased’s
lungs being
congested
with blood.
[11]
Mrs J[....]3, the wife of the deceased,
also testified. They had been married for 23 years and had two
children, aged 22 and eight.
The elder child was studying at the
University of Cape Town. The younger, who had been adopted at the age
of four months, is schooling
at a private school in Makhanda. Funds
had been provided
by
the deceased to enable the children’s education. The deceased
had played a crucial role in their upbringing, communicating
with
them better than their mother could. For example, he would
unhesitatingly leave his work in Bhisho and travel to Makhanda
whenever his children needed him. They meant the world to him. He
knew
their
friends and the parents of their friends by name. It was the deceased
who had raised and bottle-fed the younger child, who
had been present
at the time of the incident.
[12]
The deceased had been a police officer
holding the rank of Director and stationed in Bhisho, prior to his
retirement. He had been
the head of the family and also filled the
role of father to the witness’s other children prior to his
passing. The child
aged eight had been adopted and knew no other
father. The deceased was also
considered
as
a
father
figure
and
leader
by
various
community
members,
particularly
for households where a father figure was absent. In some instances,
the
children
supported had obtained tertiary qualifications. A children’s
bicycle race, the
Eastern
Cape Cycling Tour, had also been initiated by the deceased, to
provide opportunities to children. He had been a freedom
fighter and
a veteran of Umkhonto
we
Sizwe. He was a patriot who would frequently feed community members
who were struggling financially. He was also an active member
of the
Anglican Church working with the youth. He played a role as a unifier
of families and as a mediator. He was a commissioner
of the South
African Defence Force at the time of his passing, working even in
retirement to protect the rights of the country’s
soldiers.
[13]
The witness and another family member had
been taken to the main bedroom
containing
the safe. The perpetrators were disappointed to find that there was
no money there. They then assaulted the witness.
The person holding
the fire-arm attempted to fire at the witness but it mis-fired. The
magazine in the firearm was removed and
reinserted, and another
attempt was made to shoot the witness. She was pleading with them,
saying that they could accompany her
while she withdrew money.
Instead, they ransacked the wardrobe, throwing many items on the
floor. The
witness
was subsequently gagged with a rope and dragged to the en suite
bathroom
and made
to lie down, facing the toilet, her hands and feet tied with chargers
and cords. The witness asked her attacker if she
was to be raped. He
was busy pulling down her trousers and panty to her knees, told her
that he was not going to rape her
but
would shoot her in the genitals instead. When he attempted to do so,
the firearm
again
misfired. The witness prayed for her life. Her attacker left and then
returned, made a hand gesture towards her and then left.
[14]
Once she had managed to untie herself, the
witness ran to her husband’s body
and
saw that he was still. One of the other inhabitants had been tied up
so tightly that
he
had lost circulation. The witness then called the police. She
confirmed that various
items
had been taken from the inhabitants and placed in a bag taken from
the bedroom.
[15]
The robbery and murder had resulted in the
witness being suspected by certain
community members of some involvement. Her
relationship with her in-laws had also
been
negatively
affected.
Her
own
family-life
had
been
severely
disrupted.
The
deceased’s passing had left an irreparable
void. Their farm had also suffered and people were now trespassing
regularly. Employees
had left and animals had died. A
security company had since been contracted.
The witness had been deeply hurt and
required treatment for depression,
including in-patient treatment for 14 days and anti-
depressant medication. While the medication
had helped, there was now some dependence on this. Her work, as a
chief financial officer,
had been severely affected
and she suffered from loss of memory. Her
performance at work had declined. Her youngest child had observed
what had happened and
was also traumatised. She had started
bed-wetting and required therapy.
Analysis
[16]
Murder
when committed by a group of persons acting in common purpose is
listed
in
Part I of Schedule 2 of the Criminal Law
Amendment
Act, 1997 (‘the Minimum
Sentences
Act’).
[3]
Murder when the
death of the victim was caused by the accused in committing or
attempting to commit or after having committed robbery
with
aggravating circumstances, as defined in s 1 of the Act, is also
listed in this part. The
consequence
is that the crime attracts a minimum sentence of life imprisonment
unless the court finds substantial and compelling
circumstances to
deviate from this.
[17]
Courts
are expected to temper the punishments they impose with a modicum of
mercy in order to attempt to achieve a balanced, even-handed
outcome.
[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]
A court must exercise a reasoned discretion in determining an
appropriate sentence.
[18]
The
approach to be applied in imposing a sentence when the Minimum
Sentences
Act applies has been set out by Nugent JA in
S
v Vilakazi
:
[6]
‘
It
is clear from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
that
it
is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence. The Constitutional
Court made it clear that what is meant by the “offence”
in the context … “consists of all factors
relevant to the nature and seriousness of
the criminal act itself, as well as all relevant personal and other
circumstances relating
to the offender which could have a bearing on
the
seriousness
of the offence and the culpability of the offender”. If a court
is indeed satisfied that a lesser sentence is
called for in the
particular case, thus justifying a departure from the
prescribed sentence, then it hardly needs
saying that the court is bound to impose that lesser
sentence.’
[19]
As
noted by Mr Mtsila, for the state, it must be borne in mind that
personal aversion to life imprisonment or doubts as to the efficacy
of the policy implicit in the Minimum Sentences Act cannot be
elevated to ‘substantial and compelling’ factors. The
prescribed minimum sentences must be imposed unless there are ‘truly
convincing reasons’ for departure.
[7]
These are sentences to be imposed ‘ordinarily and in the
absence of weighty justification’.
[8]
If the sentencing court, on consideration
of
the circumstances of the particular case, is satisfied that they
render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the
needs
of society, so that an injustice would be done by imposing that
sentence, it is
entitled
to impose a lesser sentence.
[9]
[20]
The personal circumstances of Mr Billa were
presented to the court by Ms Mthini. He is 28 years of age and worked
in Nelspruit as
a hairstylist earning R2500
per
month prior to his arrest. His parents and elder sister have passed
away and he
occasionally
sends money to a younger sister in Mozambique. He is father to two
young children and unmarried.
[21]
Mr Billa is a first offender in respect of
his convictions for murder and robbery with aggravated circumstances.
He pleaded guilty
and, since he was approached by
police in Nelspruit, has been forthright
about his involvement in these crimes. He was
not the main instigator of the crimes, had
himself been unarmed and had played a less active role in the
commission of the crimes
than his co-perpetrators. It was submitted
that he had shown genuine remorse for his actions. He had been
motivated by greed and
influenced by peer-pressure to participate in
a criminal activity. Counsel submitted that Mr Billa was not a danger
to society
and would testify
against
his co-perpetrators if they were apprehended. There was a possibility
of rehabilitation and the effect of a sentence of
life imprisonment
would be disproportionate to his crimes. Mr Billa has been in custody
awaiting trial for approximately ten months.
[22]
The aggravating features of the crimes are
well-illustrated by the testimony of Mrs J[....]3. Attacked in
the sanctity of
her home in the evening, her husband murdered, her
child traumatised, the community suspicious, her life, and that of
the family
members who depended upon the deceased, will never be the
same. There can be no doubt that society is appalled by serious
crimes
of this nature and expects
commensurate punishments to be imposed.
[23]
In
determining whether substantial and compelling circumstances exist
for deviating from the prescribed minimum sentence for murder,
it is
useful to consider the plea of guilty and Mr Billa’s remorse.
It has been held that a guilty plea in these circumstances
is ‘of
little moment’ once an accused person is caught, but that it
‘counts for something that he did not unduly
burden the state
with the need to prove
the
charges’ and had, furthermore, expressed remorse.
[10]
It is a question of fact whether this remorse is genuine or not,
requiring consideration of an accused’s conduct after the
offence and during a trial.
[11]
The reality is that Mr Billa did not confess out of his own volition
but spoke openly about his involvement once he was
confronted
by the police, suggesting a case of ‘regret’ rather than
‘remorse’. He also
failed
to testify in mitigation of sentence, leaving it to his
representative to explain his position.
[12]
Still,
his
offer
to
testify
against
the
co-perpetrators,
his
explanation
of
events,
plea of guilty and tendered apology cannot be ignored.
[13]
[24]
Added
to this is his less active role in the commission of the murder and
the events subsequent thereto. Mr Billa’s statement
regarding
his involvement, including
that
he was assaulted by Shelauli, must be accepted. Mrs J[....]3 herself
recalled such an occurrence. In this regard, it may be
noted that
S
v Erskine
is
one of the cases where a court has drawn a distinction between the
various roles played by offenders in the execution of a common
purpose.
[14]
In that matter,
an effective term of 30 years’ imprisonment was considered to
be unduly harsh on a first offender who
had
played a less active role in kidnapping the complainant and in
circumstances where there was no proof that he had himself assaulted
her.
[15]
[25]
Cumulatively
considering that Mr Billa is a first offender, his less active role
in the commission of the murder and the events
subsequent thereto,
and his plea of guilty and subsequent conduct, I am of the view that
substantial and compelling circumstances
exist so that a minimum life
sentence for murder should not be imposed. These are not light or
flimsy considerations. Life imprisonment
as an outcome would be
unjust in the circumstances, and destroy any prospect of
rehabilitation, warranting a departure. Suffice
to say that, upon
consideration of the crime, the criminal and the interests of
society, I have no similar misgivings in respect
of
imposing the prescribed minimum sentence for the conviction in
respect of robbery
with
aggravating circumstances. Plasket J held as follows in
S
v
Arends and Others
:
[16]
‘
The
offence of robbery with aggravating circumstances is also …
all too prevalent, causing
grave
harm to the physical, psychological and economic interests of victims
of this form of predatory conduct. All too often, the
offence is
committed at the same time as rape … and murder. Society’s
interest in the effective punishment of this
offence by the courts is
obvious.’
[26]
As
to the appropriate sentence for the murder conviction, various
remarks are apposite. Although deterrence is one of the important
purposes of punishment, the reasons for not ‘sacrificing an
accused person on its altar’ have been expressed in a
range
of decisions. The issue of prevalence of crimes also requires careful
consideration. It has been explained that sentencing
courts cannot
keep on imposing
more
and more severe sentences simply because the particular crime is
prevalent or on the increase.
[17]
The purpose of sentencing is not to satisfy or meet public opinion
but to serve and promote the public interest.
[18]
A court should not too easily be swayed by the argument that society
demands a severe sentence, it being its function to ensure
that a
convicted offender is treated fairly. This includes the treatment
meted out during the sentencing process, when the court
exercises its
discretion upon a consideration of all the applicable factors.
Decided cases, while being a useful guideline, cannot
straightjacket
a court into a particular position.
[27]
Having said that, Mr Billa willingly
participated in a planned robbery, travelling from Nelspruit to East
London for that purpose.
He knew that Shelauli was armed en
route to the scene of the crime, foresaw
the possibility of violence and shooting once
he realised that the target house was
occupied and nonetheless proceeded regardless. The subsequent events,
particularly the murder
for which Mr Billa has been convicted, have
shattered the life of Mrs J[....]3 and the family she holds dear.
[28]
Moreover, the deceased’s community
has lost one of its stalwarts and pillars needlessly. In considering
the appropriate sentence
to be imposed, these consequences, and
society’s disgust at the brazen violation of human life and
property that has become
commonplace, far outweigh Mr Billa’s
right to freedom and
the
various mitigating factors already listed. A lengthy period of
imprisonment is certainly warranted. Bearing in mind the time
already
spent in custody, I consider a sentence of 22 years imprisonment to
be appropriate for the murder conviction.
[29]
As already indicated, there is no basis to
depart from the prescribed minimum
sentence
in respect of the conviction for robbery with aggravating
circumstances. Considering the circumstances of that offence
and the
resultant murder, it is appropriate for this sentence to run
concurrently with the sentence for count one.
[30]
Finally, Mr Billa has also been convicted
for the second time for a statutory offence.
Section 49(1)
(a)
of the
Immigration Act, 2002
, provides
that anyone who enters or remains in, or departs from the country in
contravention of this Act, shall be
guilty
of an offence and liable on conviction to a fine or to
imprisonment not exceeding
two years. While non-citizens enjoy a range
of rights in South Africa, they are expected to comply with the
country’s laws,
particularly when they have already received a
non-custodial sentence for a previous infraction. A period of
imprisonment
of
six months is considered to be appropriate in this regard.
Order
[31]
The accused is sentenced as follows:
1.
Count
1: Murder (Mr J[....]1 J[....]2): 22 years’ imprisonment;
2.
Count
2: Robbery (with aggravating circumstances): 15 years’
imprisonment;
3.
Count
3: Unlawfully entering and remaining in the Republic of South Africa
in in contravention of
s 49(1)
(a)
of the
Immigration Act, 2002
: 6 months’
imprisonment.
It is directed that the
sentences imposed in respect of count 2 shall be served concurrently
with the sentence imposed in respect
of count 1, giving an effective
sentence of 22 years’ and 6 months.
A. GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:09
May
2022
Delivered:12
May
2022
Appearances:
Counsel for the
State: Adv S.
Mtsila
Director of Public
Prosecutions Makhanda
046 602 3000
Attorney for
Accused: Ms N.
Mthini
Legal Aid of South Africa
East London
043 704 4700
[1]
Act
51 of 1977.
[2]
Act
13 of 2002.
[3]
Act
105 of 1997. See
S
v N
2000
(1) SACR 209
(W), confirming that the prescribed minimum sentence is
applicable to a person convicted of murder with common purpose
[4]
See
S
v Khulu
1975
(2) SA 518
(N) at 521-522.
[5]
Malgas
v S
2001
(1) SACR 469
(SCA) (‘
Malgas
’);
Radebe
v The State
[2019]
ZAGPPHC 406 para
12. On the functions of
sentencing, see
S v Van Loggenberg
2012 (1) SACR 462
(GSJ)
and
S v Tsotetsi
2019 (2) SACR 594
(WCC)
para 29.
[6]
S
v Vilakazi
2009
(1) SACR 552
(SCA) (‘
Vilakazi
’)
para 15.
[7]
Malgas
supra
fn 5 para 23.
[8]
Vilakazi
supra
fn 6 para 16.
[9]
Ibid
para 14
[10]
S
v Mathe
2014
(2) SACR 298
(KZD) para 27. Also see
S
v Matshiba
2012
(1) SACR 577
(ECG) para 17 and
S
v Britz
2016
JDR 0980 (SCA) para 10.
[11]
Director
of Public Prosecutions, Grahamstown v Peli
2018
(2) SACR 1
(SCA) para 10.
[12]
See
S
v PZ
(unreported,
WCC case no A283/2019, 8 November 2019 para 3.
[13]
See
S
v Gouws
(unreported,
GP case no A224/2016, 13 December 2016) para 37.
[14]
S
v Erskine
2008
(1) SACR 468 (C).
[15]
Also
see
S
v Matoewa
2009
(2) SACR 303 (ECG).
[16]
S
v Arends and Others
[2010]
ZAECGHC 11 para 19.
[17]
S
v Qamata
1997
(1) SACR 479
(E) at 482
c-d
.
Cf
S
v Ndou
2019
(2) SACR 243
(SCA) para 23
[18]
S
v Mhlakaza and Another
1997
(1) SACR 515
(SCA) at 518
e-f
.
Also see
S
v Jimenez
2003
(1) SACR 507
(SCA) and
S
v Van de Venter
2011
(1) SACR 238
(SCA) para 15. In
S
v O
2003
(2) SACR 147
(C)
it was held that the
court should be constantly vigilant against taking the easy way out
by simply joining the ranks of the mob
and imposing sentence for
which a crowd in a street may be screaming, without it properly
consulting its own common judgment
and experience. Of course this
does not mean that the court can simply ignore the wishes and
expectations of the community.