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[2022] ZAECMHC 22
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S v Makhanda (CC29/2021) [2022] ZAECMHC 22 (12 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. CC29/2021
In the matter between:
THE STATE
vs
MANDISI
MAKHANDA
Accused
SENTENCE
JOLWANA J
:
[1]
The accused has been convicted on three counts of murder, one count
of aggravated robbery and crimes related to the possession
of a
firearm and ammunition. All of these are very serious offences for
which the State had indicated its intention to rely on
section 51 (1)
of the Criminal Law Amendment Act 105 of 1997 (the Minimum Sentences
Act) in respect of the murder charges for sentencing
purposes in the
event of a conviction. The State also indicated its intention to rely
on section 51 (2) of the Minimum Sentences
Act in respect of the
aggravated robbery charge on the basis that during the robbery a
firearm was used. In respect of the murder
charges the reason cited
by the State for its intended reliance on section 51 (1) of the
Minimum Sentences Act was the fact that
when the murders were
committed the accused was with other people who were unknown to the
State and acted in execution of a common
purpose with them. The State
also raised the issue of the murders being planned or premeditated.
However, the court found that
both on common purpose and
premeditation the State had not led sufficient evidence as would
found common purpose and/or premeditation.
[2]
During submissions after the accused was convicted and, for the first
time during the sentencing proceedings, counsel for the
State
submitted that the accused is liable to be sentenced to the
prescribed minimum sentence of life imprisonment for the murder
convictions. The reason cited by the State was that the evidence
established very clearly that the murders were committed after
the
robbery was committed and therefore fall under the Minimum Sentences
Act sentencing legal dispensation. I must point out that
this basis
for seeking to rely on the Minimum Sentences Act was not referred to
in the indictment and the accused was not specifically
warned about
it. I will deal with this issue in some detail later in this
judgment.
[3]
The relevant provisions of the Minimum Sentences Act in respect of
the murder convictions is Section 51 (1) which provides that:
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part 1 of Schedule 2 to imprisonment for
Life.”
[4]
Part 1 of Schedule 2 to the Minimum Sentences Act provides, in the
relevant part, as follows:
“
Murder,
when –
(a)
…
(b)
…
(c)
the death of
the victim was caused by the accused in committing or attempting to
commit or after having committed or attempted to
commit one of the
following offences:
(i)
…
(ii)
robbery with
aggravating circumstances as defined in section 1 of the Criminal
Procedure Act, 1977 (Act 51 of 1977).”
[5]
The sequence of events when the murders were committed, according to
the uncontroverted evidence of some of the State witnesses
was that
the accused walked into the Nomqonde spaza shop, pulled out a
firearm, and told the customers to keep quiet and lie down.
He then
gained access inside the counter where Novangeli was. He demanded
money from Novangeli and she gave him the money. As the
accused was
about to leave, he noticed a cellphone on the counter. He turned back
and took that cellphone. After taking the cellphone
he fired a shot
at Novangeli. Thereafter he fired two more shots at Fezile Nomqonde
and Zalisile Nomqonde. All three of them later
died in hospital from
gunshot wounds.
[6]
This evidence shows the indisputable fact that when these murders
were committed, in the words of paragraph (c) of Part 1 Schedule
2,
“
the
death of the victims was caused by the accused after committing one
of the following offences:
(i)
…
(ii)
robbery with aggravating circumstances as defined in section 1 of the
Criminal Procedure Act, 1977 (Act 51 of 1977).”
[7]
Section 1
of the
Criminal Procedure Act reads
as follows:
(1)
In this Act, unless the context otherwise indicates –
‘
aggravating
circumstances’, in relation to -
(a)
…
(b)
robbery or attempted robbery, means –
(i)
the wielding of a firearm or any other dangerous weapon;
(ii)
the infliction of grievous bodily harm; or
(iii)
a threat to inflict grievous bodily harm,
by
the offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission
of the
offence.”
[8]
The evidence established overwhelmingly that not only was the accused
wielding a firearm before he committed the robbery, he
also used that
firearm by shooting the deceased, after the robbery. That evidence
makes the murders fit perfectly within the provisions
of
section 1
of
the
Criminal Procedure Act which
is referred to in paragraph (c) (ii)
of
Part 1
of Schedule 2.
[9]
With that having been established the next issue for consideration is
the legal position regarding the fact that this basis
of the State’s
intention to rely on section 51 of the Minimum Sentences Act was not
raised in the indictment nor was the
accused warned about it
specifically. In other words, can the sentencing of an accused person
who was warned of a different basis
for the application of the
Minimum Sentences Act to the one that was established by the evidence
be subjected to the sentencing
that is provided for under the Minimum
Sentences Act about which he not specifically warned? The Supreme
Court of Appeal has recently
explained the applicable legal position
in
Mekuto
[1]
in which Molemela JA expressed herself as follows:
“
In
relation to this matter, it is important to note that the applicant
faced exactly the same charges as Mr Mpuqe. Section 51 (1)
read with
Part 1 (c) (ii) of Schedule 2 of the CLAA prescribes the imposition
of life imprisonment for a murder committed in the
course of
committing a robbery with aggravating circumstances. The applicant
conceded that as regards the robbery charge, the indictment
gave an
extensive description of the circumstances in which the offence was
committed. The person named as the deceased in the
murder charge was
the same person that was mentioned as the victim of the robbery.
There could not have been any doubt that the
murder described in the
indictment fell squarely within the purview of Part 1 (c) (ii) of
Schedule 2 of the CLAA, in respect of
which the prescribed minimum
sentence is life imprisonment within the contemplation of s 51 (1) of
the CLAA. Under those circumstances,
it is indeed difficult to
understand how any of the defence counsel could have labored under
the impression (and consequently informed
their client) that the
applicable minimum sentences for the murder charge they were facing
was 15 years’ imprisonment as
contemplated in s 51 (2) of the
CLAA and not life imprisonment contemplated in s 51 (1) of the CLAA.”
[10]
Earlier this year the applicable considerations were also explained
by the Supreme Court of Appeal in
Mpuqe
[2]
which was also referred to in
Mekuto
in which Mbatha JA said:
“
The
question that arises in this case is whether there was a failure to
apprise the appellant of the provisions of the CLAA, which
vitiated
his right to a fair trial. This court settled this issue in
Kolea
v S
, where the court emphatically
stated that the CLAA does not create new offences. The fact that the
charge sheet is not amended
does not translate to invalid
proceedings. A formal application to amend the charge sheet is not
always required. The test is whether
the accused suffered any
prejudice. In this case, it is clear that it was always uppermost in
the mind of the trial court that
it was dealing with the murder in
terms of s 51 (1) of the CLAA. As a matter of fact, the pertinent
issues relating to the elements
of the conviction in terms of section
51 (1) were conclusively proved by evidence.”
[11]
It is important to emphasize that in this case section 51 (1) was
specifically invoked in the indictment and the accused was
accordingly warned about the consequences thereof in the event that
he was convicted on the murder charges. The only issue is that
the
indictment did not make specific reference to the fact the murders
were committed in the course of the robbery as provided
for in Part 1
of Schedule 2 (c) (ii). However, the evidence proved conclusively
that the death of all the three deceased persons
was caused by the
accused after having committed robbery with aggravating
circumstances.
[12]
It must be remembered that at all times the question is always
whether when all is said and done the accused received a fair
trial.
This much was made clear in
September
[3]
in which the Constitutional Court explained the legal position as
follows:
“
It
is indeed desirable that the charge sheet refers to the relevant
penal provision of the Minimum Sentences Act. This should not,
however, be understood as an absolute rule. Each case must be judged
on its particular facts. Where there is no mention of the
applicability of the Minimum Sentences Act in the charge sheet or in
the record of the proceedings, a diligent examination of the
circumstances of the case must be undertaken in order to determine
whether that omission amounts to unfairness of the trial. This
is so
because even though there may be no such mention, examination of the
individual circumstances of a matter may very well reveal
sufficient
indications that the accused’s section 35 (3) right to a fair
trial was not in fact infringed.”
[13]
I have therefore come to the conclusion that the murders committed by
the accused in this case fall within the purview of section
51 (1) of
the Minimum Sentences Act as provided for in Part 1 (c) (ii) of
Schedule 2. The question of the accused’s section
35 (3)
constitutional right to a fair trial cannot arise particularly
because in the indictment the intention of the State to invoke
section 51 of the Minimum Sentences Act was made abundantly clear.
Secondly, the court explained the implications of the State’s
intentions to apply to the court for the accused to be sentenced to
life imprisonment if convicted, at the pleading stage. This
is over
and above the fundamental duty of the accused’s legal
representative to explain those implications, including what
the
evidence may in fact establish.
[14]
The only issue for consideration is therefore whether the accused has
established the existence of substantial and compelling
circumstances
such as would result in the court exercising its sentencing
discretion to depart from the prescribed minimum sentences
of life
imprisonment. The same applies in respect of the robbery conviction
for which the State invoked the provisions of section
51 (2) of the
Minimum Sentences Act and thus bringing it within the realm of the
prescribed minimum sentences. Section 51 (2) reads:
“
Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person who
has been convicted
of an offence referred to in –
(a)
Part II of Schedule 2, in the case of –
(i)
a first
offender, to imprisonment for a period not less than 15 years;”
[15]
The relevant part of Part II Schedule 2 reads:
“
Robbery
–
(a)
when there are
aggravating circumstances.”
[16]
The evidence has established that there were aggravating
circumstances as a firearm was wielded before the robbery after which
the deceased were shot and subsequently succumbed to death.
[17]
In
Vilakazi
[4]
the approach to sentencing where the Minimum Sentences Act is
applicable was explained as follows:
“
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 that context
‘
consists
of all factors relevant to the nature and seriousness of the criminal
act itself, as well as 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 a
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. That was also made clear in
Malgas
,
which said that the relevant provision in the Act
‘
vests
the sentencing court with the power, indeed the obligation, to
consider whether the particular circumstances of the case require
a
different sentence to be imposed. And a different sentence must be
imposed if the court is satisfied that substantial and compelling
circumstances exist which ‘justify … it’”
[18]
I turn now to look at the accused personal circumstances and in
particular, whether there are any substantial and compelling
circumstances in this case on the basis of which this Court may
depart from the prescribed minimum sentences.
[19]
The accused did not testify in mitigation of sentence. His legal
representative prepared comprehensive heads of argument and
made
submissions from those heads of argument. Those heads of argument
assisted the court a great deal in understanding the accused’s
contentions and submissions on sentencing. The court was urged not to
over emphasize the seriousness of the offences above the
accused’s
personal circumstances. The accused’s personal circumstances
mentioned were that he is 35 years old, unmarried
with two children
one of whom is still a minor of eight years old. It was further
submitted that he was remorseful for his actions
and would like,
through the court, to convey his sincere apologies to the families of
the deceased for the pain and suffering he
has put them through.
[20]
It was further submitted that he escaped from the Rooigrond
Correctional Centre in Mahikeng where he was serving sentences
because of the tribalism related ill-treatment he was allegedly
subjected to. He made numerous requests to be transferred from
that
facility but in vain. His father passed away in 1998 and now his
closest surviving relatives are his sickly mother and two
younger
siblings. He made some bad choices in life and went with a wrong
crowd which led to alcohol and drug abuse. This led to
criminal
activities which resulted in his arrest and convictions after which
he was sentenced, inter alia, to life imprisonment
at the age of 26
years. Since his incarceration he has not been taking drugs. He has
been in custody in respect of this matter
since November 2018
following his arrest.
[21]
In my view there is nothing substantial or compelling about the
accused’s personal circumstances especially taking into
account
that he has been convicted of serious crimes. On the contrary, there
are very serious aggravating factors. I may mention
just a few. When
Novangeli was shot and killed, she had not even offered resistance to
the robbery. She was a young woman at the
age of 36 years when she
was killed. She was living a very productive life which was cut short
abruptly for reasons that the accused
has not taken the court into
confidence about. According to the evidence of her brother, Zolani
Nomqonde, she was employed by the
O.R. Tambo District Municipality
earning an income with which she looked after her three children two
of whom are still minors
at the ages of 16 and 15 years old. All
three of them, Zinje, Mfezeko and Ntombivelile are now all basically
orphaned as they stayed
with her before she was murdered senselessly.
The father of one of her children died and the fathers of the other
two are unknown
to the family.
[22]
Fezile Nomqonde who was also shot and killed was self-employed as a
builder. He was 38 years old when he was murdered. He had
a child of
about 13 years old who is still schooling. This child stayed with
Fezile. The last person who was killed by the accused
was Zalisile
Nomqonde who was also an independent builder. He was only 32 years
old when he was murdered by the accused. He stayed
with his father
and had no children. Only his father is still alive and had to go
through the pain of burying his son following
his senseless killing.
[23]
Zolani Nomqonde further testified that his father who is also the
father of Novangeli and Fezile is 80 years old and their
mother is 75
years. They had to experience the pain of losing two children in one
day on that fateful day, the 4 October 2018 which
will forever be
etched in their memories. They were both badly affected by the sudden
loss of two of their children resulting in
their health
deteriorating. The spaza shop has since been rented out following the
death of Novangeli who ran it. Zolani further
testified that after
the incident three other family members also died as Novangeli was
assisting them during her life time by
taking them to doctors and
looking after them. What this means is that Novangeli was not only
looking after her children, she also
took care of her parents and
other people within the broader Nomqonde family. All the three
deceased persons were young law abiding
citizens who died at the
hands of a ruthless criminal, the accused.
[24]
The worst and most disturbing aspect of this case which is also a
very serious aggravating factor, is that the accused had
escaped from
Rooigrond Correctional Centre where he was serving a life sentence
for a murder conviction for which he was sentenced
in September 2013.
He was also serving a 12-year sentence for attempted murder and a
six-year sentence for kidnapping when he escaped
five years into his
sentences. It is clear that whatever rehabilitation programmes he
would have been put through by the Department
of Correctional
Services before his escape did not work. He escaped from prison and
went on to commit aggravated robbery and three
murders with a firearm
that he dispossessed from a Correctional Services officer on duty in
less than five months after he escaped.
When the said firearm was
dispossessed from the said officer at Rooigrond Correctional Centre
he was also shot and wounded when
the accused and four others
escaped. This in my view, makes the accused to rank among the most
dangerous criminals who should be
completely removed from society and
remain in custody until the end of his natural life. In the absence
of substantial and compelling
circumstances justifying a departure
from the prescribed minimum sentences, which in his case, are
non-existent, he must be sentenced
as provided for in the Minimum
Sentences Act.
[25]
I therefore sentence you as follows:
1.
Life imprisonment for the murder of Novangeli Nomqonde.
2.
Life imprisonment for the murder of Fezile Nomqonde.
3.
Life imprisonment for the murder of Zalisile Nomqonde.
4.
Fifteen years imprisonment for aggravated robbery.
5.
Five years imprisonment for the unlawful possession of a firearm on 4
October 2018.
6.
Five years imprisonment for the unlawful possession of a firearm on 7
November 2018.
7.
Three years imprisonment for the unlawful possession of ammunition.
8.
The sentences referred to in 5,6 and 7 above are ordered to run
concurrently with the sentence in respect of aggravated robbery.
9.
You are declared unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act 60 of 2000
.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State: M.F Mzila
Instructed
by: Director of Public Prosecutions
MTHATHA
Counsel
for the Accused: M. Sakwe
Instructed
by: Legal Aid South Africa
MTHATHA
Heard
on : 28 July 2022
Delivered
on : 12 August 2022
[1]
Thembinkosi
Mekuto v The State (1120/2020)
[2022] ZASCA 86
(08 June 2022) para
18.
[2]
Sibongile
Luphumlo Mpuqe v The State (53/2021)
[2022] ZASCA 37
(4 April 2022)
para 15.
[3]
MT
v S; ASB v S, September v
S
2018
(2) SACR 592
(CC) para 40.
[4]
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 15.