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[2022] ZAECMKHC 81
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S v Matebese and Another (Sentence) (CC312022) [2022] ZAECMKHC 81 (21 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.: CC312022
Heard:
17, 18, 19 & 20 October 2022
Delivered:
21 October 2022
In
the matter between:
THE
STATE
Appellant
and
MANDILAKHE
MATEBESE
Accused 1
PHILASANDE
TUSANI
Accused 2
SENTENCE
MOLONY
AJ:
1.
The two accused in this matter have each
been found guilty of one count of robbery with aggravating
circumstances, and one count
of murder.
2.
In regard to the robbery count, a
discretionary minimum sentence of 15 years’ imprisonment is
applicable, whilst a discretionary
minimum sentence of life
imprisonment is applicable in regard to the murder count.
3.
It is trite that when determining an
appropriate sentence, the nature of the crime, the circumstances of
the offender and the interests
of society must be considered, and
that relevant mitigating and aggravating factors must be weighed in
order to determine a sentence
which is proportionate under the
circumstances.
4.
Accused 1’s personal circumstances
are the following:
4.1
He was born on 27 August 1988, and is
currently 34 years old.
4.2
He is unmarried, and has two daughters, one
who is 6 years of age, with the other being 8 years of age.
Both children reside
with their respective mothers in the East London
area. It was not suggested that they rely on accused 1 for any
form of financial
(or other) maintenance.
4.3
He has a grade 12 education, and was busy
studying a course in business management, which he was forced to
abandon due to financial
constraints. It is known from his
evidence during the trial that he abandoned these studies in 2013.
4.4
Prior to his arrest he did odd jobs,
including grass cutting, where he would earn R 450 per week.
4.5
He was raised by both his parents.
His father passed away several years ago.
4.6
Prior to his arrest he was looking after
his grandfather who is ill and lives alone. The grandfather is
being assisted by
a neighbour since accused 1’s arrest.
5.
Accused 1 has been in custody since his
arrest. He applied for bail, but his application was refused.
6.
Accused 1 has two previous convictions, one
for assault with intent to cause grievous bodily harm, and one for
common assault.
Both convictions appear to stem from incidents
occurring on 21 December 2014, with accused 1 being convicted in
regard to both
on 7 March 2017.
7.
In regard to the previous conviction of
assault with intent to cause grievous bodily harm, accused 1 received
a sentence of 12 months’
imprisonment, half of which was
suspended for 5 years. It is noted that the offences in the
present matter were committed
prior to the 5 year suspension period
having expired.
8.
In regard to the previous conviction of
assault, accused 1 received a sentence of 3 months’
imprisonment.
9.
Accused 2’s personal circumstances
are the following:
9.1
He was born on 2 March 1998, and is
currently 24 years old.
9.2
He is unmarried and has no children.
9.3
He went as far as grade 10 at school (but
did not complete grade 10).
9.4
He, similar to accused 1, does odd jobs
such as grass cutting, for which he earns R 450 per week.
9.5
From time to time he also performs as a hip
hop artist in local taverns. He does this approximately twice a
month, and earns
approximately R 2 000 to R 3 000 on each
occasion. He has been doing this since 2012.
9.6
He was raised by both his parents.
They separated when he was 12 years old, and since then he lived with
his paternal grandmother.
9.7
Accused 2 is a first offender.
10.
Accused 2 has been in custody since the
date of his arrest. He applied for bail but it was refused.
11.
Mr Geldenhuys submitted, in mitigation,
that the personal circumstances of both accused (aside from accused
1’s previous convictions)
are generally favourable and should
receive proper recognition.
12.
In regard to the robbery, he noted,
correctly, that in rejecting the versions of the accused and
accepting the evidence of the State,
it was not found that a laptop
had been stolen from accused 2. He noted further that this
court is not in a position to know
the value of the backpack and
knife (belonging to the deceased) which were taken.
13.
In regard to the murder, he submitted that
the circumstances did not involve a typical robbery. The
deceased and the accused
appeared to be friends. Something
which occurred between them caused the two accused to act in anger,
which should receive
acknowledgment.
14.
He submitted that all of the aforementioned
factors amount to substantial and compelling circumstances, and that
the application
of the discretionary minimum sentences would be
disproportionate and unjust.
15.
If it was decided to deviate from the
discretionary minimum sentences, he submitted that an appropriate
sentence for count 1 would
be 10 to 12 years’ imprisonment, and
for count 2, 20 years’ imprisonment. He submitted that it
would be appropriate
for the sentences to run concurrently.
16.
When asked regarding whether there was
reason for either of the accused to be treated differently to the
other in terms of sentence,
Mr Geldenhuys submitted that, aside from
a difference in regard to previous convictions, there was no reason
to treat them differently.
He submitted that both should
receive the same sentence.
17.
Mr Obermeyer submitted that the following
factors were aggravating:
17.1
The accused acted with a common purpose.
17.2
Based on the actions of the accused, there
was a clear direct intention to kill the deceased.
17.3
The assault on the deceased could only be
described as brutal.
17.4
The deceased was in a defenceless position,
on the ground, when he was stabbed. This took place in full
view of children and
other witnesses, in broad daylight. He
submitted that this spoke to a certain arrogance on the part of the
accused.
17.5
The fact that both accused had a form of
income prior to arrest meant that the offences were motivated by
greed, and not need.
17.6
Neither of the accused showed any remorse.
17.7
The evidence of the brother of the
deceased, Mr Bombotho, described the financial and emotional effect
which the death of the deceased
had on his family.
18.
He submitted further that:
18.1
Both accused were a danger to society, if
regard was had to the brutality of the attack, which involved
attacking a friend of the
accused.
18.2
There was no accepted evidence before court
as to provocation, which could be considered mitigating.
18.3
Offences of this nature undermine the
feeling of safety and security within the community.
18.4
The discretionary minimum sentences were
not inappropriate under the circumstances. Should this court be
of a different opinion,
then the discretionary minimum sentence in
regard to the robbery remained appropriate, and a long term of
imprisonment (such as
20 years) for the murder, was requested (to run
concurrently with the sentence for the robbery count).
19.
In
considering whether or not there are substantial and compelling
circumstances present which justify the imposition of a lesser
sentence, I will remain mindful of the guidance provided by the often
cited matter of
S
v Malgas
.
[1]
20.
I will also remain mindful of the fact that
both offences occurred during the same sequence of events.
21.
The manner in which the deceased, who was a
friend of the accused, was attacked, and the number of times he was
stabbed, implies
an element of anger on the part of both accused.
This aspect is, however, limited to the aforementioned observation
because,
as Mr Obermeyer correctly noted, there is no accepted
evidence before this court in regard to the issue of the presence of
any
provocation.
22.
Having carefully considered and weighed the
relevant mitigating and aggravating factors which need not be
repeated, it is clear
that the aggravating factors in this matter far
outweigh the mitigating factors.
23.
The attack on the deceased was brazen and
callous (in that it occurred in broad daylight in full view of the
public, including children),
and involved a coordinated effort to
stab the deceased multiple times in the back after pushing him to the
ground, taking his property
and leaving him to die.
Neither of them has demonstrated an ounce of remorse. It is
self-evident that such
an incident would negatively affect the sense
of safety and security of the local community.
24.
I am accordingly unpersuaded that
substantial and compelling circumstances exist (in relation to either
accused) in regard to either
the robbery count or the murder count.
In my view, the applicable discretionary minimum sentences are not
disproportionate
or unjust, given the circumstances of this matter.
25.
I accordingly impose the following
sentences:
25.1
Accused 1:
Count 1: 15 years’
imprisonment.
Count 2: Life
imprisonment.
25.2
Accused 2:
Count 1: 15 years’
imprisonment.
Count 2: Life
imprisonment.
N
MOLONY
JUDGE
OF THE HIGH COURT (ACTING)
For
the State
:
Mr.
Obermeyer
For
the Accused :
Mr. Geldenhuys
[1]
2001
(2) SA 1222 (SCA).