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[2022] ZAECMHC 27
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S v Manundu and Others (CC18/2020) [2022] ZAECMHC 27 (18 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. CC18/2020
In the matter between:
THE STATE
vs
MZUBONGILE
MANUNDU
Accused No.1
SITHEMBISO
YALWA
Accused No.2
SOWISA
TYHOKOLO
Accused No.3
SIYABULELA
MANUNDU
Accused No.4
ZUKHANYE
MANUNDU
Accused No.5
SIKHOKHELE
VELEMANI
Accused No.6
NKOSIYOXOLO KAKUDI
VELEMANI
Accused No.7
MLUNGISI
MANUNDU
Accused No.8
NONTSEBENZO
YALWA
Accused No. 9
JUDGMENT ON SENTENCE
JOLWANA J
:
[1]
The accused have been convicted of very serious offences relating to
the extreme violence and torture meted out to a very old
woman
estimated to be 92 years old at the time of her murder. Her killing
was preceded by her being harangued and publicly paraded
half naked
by the accused some of whom should be her great grandchildren within
the Manundu family. When all of this was happening
in broad day
light, members of the community watched and did not intervene. They
allowed their children and grandchildren to watch
while an old
woman’s dignity as a human being was being stripped away from
her as she was degradingly made to suffer and
ultimately died a very
painful death.
[2]
The offences for which the accused have been convicted were committed
in circumstances in which the accused believed that the
deceased was
responsible for or caused the death of Samkelo. Samkelo had been
buried the day preceding the attack, torture and
brutal killing of
the deceased. She was also accused of having caused the death of
Sihle who had died in 2018 and accused no.2’s,
mother who died
a while back. Apparently, after the death of Sihle, a community
meeting was held and a resolution was taken that
if something similar
to Sihle’s death occurred and the deceased’s name was
mentioned, she would be banished and her
homestead would be burned.
There is no clarity about what are the exact details of this
resolution or the full circumstances under
which it was taken. It
does appear that the deceased was suspected of having bewitched
Sihle.
[3]
The death of Samkelo following a stabbing incident in the Western
Cape and the deceased’s rumoured involvement in bewitching
him
led to her torture and gruesome killing. Suspicions of witchcraft
were the only reason for the murder of the deceased, which
was
committed publicly in full view of the members of the community of
Majuba. Some members of that community had gathered at Samkelo’s
home, including the deceased herself, for the purpose of conducting a
cleansing ritual after the interment of Samkelo’s remains
the
previous day. The deceased’s killing was not committed in the
still of the night or under the shadows of darkness. It
was committed
with apparent acquiescence of the members of the Majuba community who
did nothing when an elderly woman was abused
and tortured on nothing
more than gossip mongering by some of the accused and others who
claimed to have heard of Samkelo’s
bewitching from a young
woman, Zintle at a tavern.
[4]
Accused no.1, 2, 4 and 8 have been convicted of murder on the basis
of the doctrine of common purpose. In charging the accused
the State
had invoked the provisions of
section 51
(1) of the
Criminal Law
Amendment Act 105 of 1997
citing as its reasons for doing so, the
fact that the murder was planned or premeditated and committed by a
group of persons acting
in the execution or furthermore of a common
purpose. With regards to common purpose
Section 51
(1) 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.”
[5]
Part 1
of Schedule 2 (d) reads:
“
The
offence [murder] was committed by a person, group of persons or
syndicate acting in the execution or furtherance of a common
purpose
or conspiracy.”
[6]
The relevant part of
section 51
(3) (a) reads as follows:
“
If
any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the
record of the
proceedings and must thereupon impose such lesser sentence.”
[7]
Section 51
(3) (a) empowers a court to depart from the imposition of
the prescribed minimum sentence in the judicious exercise of its
sentencing
discretion if it is satisfied as to the existence, in a
particular case, of substantial and compelling circumstances
justifying
a departure. However, in departing from the prescribed
minimum sentence, the sentencing court does not have an unfettered
discretion.
It must do so taking into account that the legislature
has provided for the imposition of the relevant prescribed minimum
sentence
in the relevant circumstances of the case.
[8]
In
Matyityi
[1]
Ponnan JA explained the legal position regarding the ambit of the
court’s powers to depart from the prescribed minimum sentences
as follows:
“
Our
courts derive their power from the Constitution and, like other arms
of the State, owe their fealty to it. Our constitutional
order can
hardly survive if courts fail to properly patrol the boundaries of
their own power by showing due deference to the legitimate
domains of
power of other arms of the State. Here parliament has spoken. It has
ordained minimum sentences for certain specified
offences. Courts are
obliged to impose those sentences unless there are truly convincing
reasons for departing from them. Courts
are not free to subvert the
will of the legislature by resort to vague, ill-defined concepts such
as ‘relative youthfulness’
or other equally vague and
ill-grounded hypotheses that appear to fit the particular sentencing
officer’s personal notion
of fairness. Predictable outcomes,
not outcomes based on the whim of an individual judicial officer, is
foundational to the rule
of law which lies at the heart of our
constitutional order.”
[9]
The accused testified in mitigation of sentence after which
submissions were made on their behalf in which the court was urged
not to impose the prescribed minimum sentence of life imprisonment. I
turn now to look at the evidence of the accused regarding
their
personal circumstances. Let me start by pointing out that all the
accused are first offenders, with no record of previous
transgressions of the law. Accused no.2 was once convicted of
escaping or attempting to escape from lawful custody while he was
serving a sentence of six months imprisonment for an offence whose
details are unclear. He was convicted in the year 2000 which
was
about 22 years ago. That previous conviction has fallen away in terms
of
section 271A
of the
Criminal Procedure Act 51 of 1977
as the
prescribed 10 year period has since elapsed. Therefore, accused no.2,
like the other accused, is, for all intents and purposes,
a first
offender.
[10]
Accused no.1 is 36 years old and is unmarried. He has two children,
both girls who are still minors. They have separate mothers
and stay
with their respective mothers. His parents are still alive but do not
live together. He was raised by his mother as a
single parent. At the
time of his arrest he worked in the Western Cape at Wellington Farm
where he earned an income which he used
to contribute in raising his
two minor children. He also supported his mother who receives an old
age grant from government. He
testified that he believed that as the
deceased had said that Samkelo and Sihle were in a trunk, she would
be able to take them
out of the trunk through magic as he believed in
witchcraft. He did not know that things would turn out as they did
and therefore
apologised for his actions. He was arrested in March
2020 and has been in custody for more than two years now.
[11]
Accused no.2 testified that he is now 52 years old. He is widowed
with one adult child and a grandchild. His parents are no
longer
alive. His adult child is unemployed and depended on him financially.
He is a subsistence farmer with some goats and cattle
which help him
to put food on the table for his family. He also did some odd jobs to
support his family. He went to school up to
standard 7 or grade 9.
His health is not good. He suffers from tuberculosis and epilepsy for
which he receives treatment. He is
struggling in prison due to his
poor health condition as the prison is cold. He almost died recently
to the extent that he could
not eat or speak. His treatment is not
always made available on time in prison as he would sometimes be told
that it has been ordered.
He testified that he imputed witchcraft on
the deceased because the deceased had said that his mother was in a
trunk. This pained
him and therefore he did not commit the crimes
willingly but because of the pain he felt. He genuinely believed that
his mother
who died a long time ago was in a trunk because the
deceased said so. He therefore apologised and would not commit the
offences
again.
[12]
Accused no.4 testified that he is 33 years old and is not married. He
has two minor children who live with their unemployed
mother. His
parents are no longer alive. He testified that he is not an unruly
person. On that day he was disturbed by the fact
that in his
presence, the deceased had said that Samkelo and Sihle were in a
trunk. He believed in witchcraft. He apologised to
the court and said
that he accepted the verdict and he will never again involve himself
in what happened in this case.
[13]
While accused no.7 has not been convicted of murder for which there
is a prescribed minimum sentence, his personal circumstances
must be
considered before he is sentenced. He was instead, convicted of the
competent verdict of assault with intent to do grievous
bodily harm.
He testified that he is 41 years old, is married with four minor
children. One of his girl children was doing matric
last year. She is
now sitting at home because of the lack of funds. His wife is working
but on a temporal basis. His mother is
not working. Before his arrest
he worked for Pool Transport at Worcester in the Western Cape. He was
responsible for the financial
wellbeing of his family including his
children. His family is now struggling since his arrest and
incarceration in March 2020.
He apologised for not thinking things
through and accepting what he was told about the deceased and acting
on it. He had learned
his lessons from this incident since being in
custody for more than two years now.
[14]
The evidence of accused no.8 was that he is 40 years old and is not
married. He has an 11 year old girl child with the
section 204
witness, Nontsebenzo Yalwa. Their child stays with his sister.
However, before he and Nontsebenzo were arrested they stayed together
with their child. He earned R1200.00 per week at Rhodes Foods Group
Farm in the Western Cape where he worked before his arrest.
He went
to school up to grade 11 and dropped out. He was arrested on 24 March
2020 and has been in custody since his arrest. He
does not have
parents but has siblings. He asked the court to be merciful in
sentencing him and said that he apologised from his
heart for the
offences for which he has been convicted. He did not intend to commit
those offences and did not foresee the outcomes
that they did.
[15]
It is fair to say that there is nothing really substantial or
compelling about the personal circumstances of all the accused,
considered alone and cumulatively without regard to the issue of
their belief in witchcraft. While accused no.2 is, on his word,
not
in good health, it is difficult to assess the seriousness of his
health condition, that is, if he is as sick as he said he
is. This
difficulty arises from the fact that, there was not a single piece of
evidence, no medical records, no medical reports,
no witnesses were
called at all to give a clear picture about his health condition. In
any event and to the extent that he is not
in good health, the
Department of Correctional Services has a responsibility to look
after the health needs of all its inmates.
What now remains to be
considered is whether or not it would be appropriate to impose the
prescribed minimum sentence of life imprisonment
in respect of
accused no.1, 2, 4 and 8. This brings me to the fact that the accused
committed these offences because of their belief
in witchcraft. In
particular, they believed that the deceased was, through witchcraft,
responsible for the death of Samkelo who
had been buried the previous
day following a stabbing incident in the Western Cape.
[16]
There is undisputed evidence that one Sihle died in 2018 under
circumstances that are not clear to this Court. There was no
evidence
led about how Sihle died and how the deceased was suspected of
bewitching him. However, the evidence was that after Sihle’s
death there was a community resolution taken by members of the
community of Majuba. The resolution was along the lines that the
deceased was warned that if something happened again, similar to what
happened to Sihle and the deceased’s name was mentioned,
she
would be burned or banished. While the details of this resolution are
not clear, that it was taken was not disputed by the
State. If the
word of the accused about what Zintle allegedly said, which in effect
was that Samkelo had not died, was in fact
alive and what was buried
was a shadow or mystical figure is to be believed, Zintle had
mentioned the deceased’s name. Accused
no.7 even accused the
members of the community who were present at Samkelo’s home, of
being liars for not implementing that
resolution.
[17]
I must emphasize that Zintle did not testify in this case. Therefore,
the truthfulness of what the accused said she allegedly
said about
Samkelo could not be confirmed. The evidence of the accused was that
they and other people who were present at Samkelo’s
home heard
what Zintle had allegedly said from one Nicholas who also did not
testify in these proceedings. Others heard it from
accused no.2, who,
if his evidence is anything to go by, had been told about it by
Nocholas. They may even have heard it from accused
no.4 who testified
that he was present with Nocholas when Zintle allegedly told them
that Samkelo was not dead. It is clear that
the ground was fertile
for misinformation, from rumour mongering, gossiping and even
distortions of what Zintle actually said,
if anything at all. It also
appears that people were still highly emotional as Samkelo had only
been buried the previous day. After
the accused and some members of
the community were told about what Zintle had allegedly said at a
tavern, she was woken up early
in the morning and brought to
Samkelo’s home by accused no.2. She was questioned there with
threats of violence if she did
not tell the truth. She was beaten up
and forced to confirm what she alleged to have said at a tavern the
previous night. There
is no doubt that the only truth that Zintle was
expected to tell was the confirmation of what Nicholas and accused
no.4 alleged
she had said. Any denial which she tried to do was
visited with violence which included beatings by the accused and
paraffin being
poured on her by accused no.7. Under those
circumstances Zintle allegedly mentioned the name of the deceased in
the alleged bewitching
of Samkelo.
[18]
It is clear that pressure was violently exerted upon Zintle to tell
the accused and that gathering what their ears were itching
to hear.
This was that the deceased was, through witchcraft, responsible for
the death of Samkelo which she allegedly did. The
accused wasted no
time in directing their attention to the deceased by violently
exerting pressure on the deceased which included
beatings, kickings,
draggings and the deceased being dragged and driven to her homestead.
On arrival at her homestead she was put
inside her rondavel which was
burning as it had been set alight. It was thereafter closed and
secured with a wire from outside
by the accused with the deceased
inside. The accused then left to board a taxi which was waiting
behind the deceased’s homestead.
The accused left the deceased
inside the burning rondavel clearly for her to burn to death as the
rondavel was closed and secured
with a wire from outside.
[19]
The deceased somehow managed to escape and was seen running away. She
was chased by the accused excluding accused no.7 who
had left before
entering the deceased’s homestead. Some of the accused were
already inside their taxi when they heard that
she had escaped. They
alighted from it and joined those who were standing next to the taxi
in chasing the deceased. They caught
up with the deceased behind a
toilet at a nearby homestead where she had tried to hide. She was
driven back to her homestead with
more violence. At this stage the
fire had engulfed the rondavel and the flames were too strong with
the roof collapsing. The accused
therefore, on their own evidence,
could not succeed in putting her inside the inferno that the rondavel
had become. They dropped
her near the door.
[20]
Her body was later found inside a drum that contained water with her
head down and her feet protruding outside the drum. The
evidence
suggested that the accused must have attempted to drown her to ensure
that she would actually die as they did not succeed
in putting her
inside the burning rondavel. When she was taken to that drum she must
have already died or too weak to be able to
inhale water Dr Jwaqa, a
forensic pathologist, testified that there was no evidence of water
inhalation or drowning as a possible
cause of death which he
therefore excluded. Dr Jwaqa also testified that the deceased
suffered many physical injuries including
a depressed skull fracture,
a linear skull fracture which he said were normally caused by sticks,
rods, fists, stones, a person
being thrown against a wall, vehicle
collisions and the like. When he opened the skull he observed an
acute right extradural haemorrhage
and subdural haemorrhage both of
which he said were internal bleeding outside and inside the hard
cover of the brain. After enumerating
a very long list of serious
injuries that the deceased sustained, Dr Jwaqa testified that the
deceased died of blunt force trauma
and the second and third degree
burns. He described the second and third degree burns as severe
burns. This is a very brief summary
of the evidence of what led to
the eventual death of the deceased, how she was brutally murdered by
the accused and what actually
caused her death.
[21]
The brutal murder of the deceased was committed by the accused who
are evidently not people who are inclined to commit crimes
or act
violently. In fact, save for accused no.2, all of them are, on the
evidence before this Court, your model citizens and exemplary
members
of the society. Well, until the 15 March 2020 when the extreme form
of violence and torture were mercilessly directed at
the deceased
with a clear determination that she should die a very painful death.
That was achieved as nobody in that community
really intervened to
stop the cruelty and save the life of the deceased. It beggars belief
that an elderly defenceless woman at
about 92 years of age, should be
subjected to such cruelty by people who knew her, all of whom were
born and grew up in front of
her eyes. One is even more shocked and
aghast that the elders of that community allowed the violent abuse of
a very old and helpless
woman. They watched as the accused were
committing this dastardly act. The silence and therefore acquiescence
of everyone who saw
what was happening led to the death of the
deceased. Some of the people who were there were women who, like men,
also did nothing
to intervene. The accused now face lengthy prison
terms when the people of Majuba could have and should have intervened
and stopped
the madness.
[22]
This is yet another form of abuse and violence perpetrated against
women in this country. More often than not those accused
of
witchcraft and are attacked and killed tend to be elderly women who
have been living in their communities for decades. It is
mostly in
their old age that it is suddenly suspected that they are the cause
of some form of suffering or death that occurs in
a particular
family. This is usually based on vague utterances, rumour mongering
and gossiping by some or other members of the
family who would be
looking for someone to blame. In some cases, people even seek and get
some form of a confirmation of their
suspicions from some of the
Sangomas some of whom are not scrupulous about the divination they
give. These kinds of behaviour clearly
call for lengthy imprisonment
terms to send a clear message to everybody who claims to believe in
witchcraft that such conduct
even on the basis of what is supposedly,
a genuine belief in witchcraft is unacceptable and will not be
tolerated. It must be firmly
rejected as an antiquated stone age
belief with no place in a society based on the rule of law.
[23]
A court was faced with an almost similar situation in which the
cousin of the accused had died in a car accident, in
Phama
[2]
and the accused had shot and killed Mr & Mrs Klaas at their home.
In that case the accused had pleaded guilty to the murders
and the
related offences. The court observed that he was not the kind of
person who would ordinarily commit a serious crime. The
accused was
32 years old from a simple rural background. He was unmarried with
three children to support. He initially worked as
a labourer and had
the strength of character to improve his lot in life. His family was
mystified in their relative’s death.
They consulted a Sangoma
who told them that the deceased in that matter was kept in a cave in
the mountains as a prisoner by a
large snake. That Sangoma told them
that the deceased in that matter were responsible for their
relative’s death. The court,
per Jones J, expressed itself as
follows and correctly so I might add, before it passed an effective
sentence of 12 years:
“
I
cannot pass a sentence which overlooks the other important
considerations which should be weighed in deciding upon a balanced
and proper sentence, namely the seriousness of the offences and the
interests of society. I cannot overlook the question of retribution
and the need to do justice to the victims as well as the offender and
the question of deterrence, the prevention of crime and the
protection of society. If I should do so, my sentence would not be
proportionate and balanced. I would fail in my duty to society.
I
cannot overlook the fact that two innocent people were deliberately
and needlessly done to death.”
[24]
I must emphasize that in
Phama
, unlike in this case, the
accused had pleaded guilty. The accused in this case maintained their
innocence even suggesting that
because there were other people at the
deceased’s homestead, the deceased might have been killed by
other people other than
themselves. The only participation in what
happened, that the accused acknowledged, was limited to what the
video footage depicted
in which they can be seen violently dragging
the deceased to the burning rondavel. They even lied under oath
distancing themselves
from her killing to escape their just
punishment for the crimes they committed. What this means is that the
accused did not want
to take responsibility for their actions. If it
was not for the clear evidence of the
section 204
witnesses, the
accused were clearly determined not to account for their actions.
Their pleas of mercy cannot be regarded as a reflection
of true
penitence. The accused were simply clearly playing with the emotions
of the court and basically feeling sorry for themselves
in their
apologies. However, I am convinced that they can still be
rehabilitated. Prospects of rehabilitation cannot be said to
be poor
or non-existent in their case.
[25]
The triad of sentencing was explained by Smallberger JA as follows in
Ingram
[3]
:
“
It
is trite law that the determination of an appropriate sentence
requires that proper regard be had to the triad of crime, the
criminal and the interests of society. A sentence must also, in
fitting cases, be tempered with mercy. Murder, in any form, remains
a
serious crime which usually calls for severe punishment.
Circumstances, however, vary and the punishment must ultimately fit
the true nature and seriousness of the crime. The interests of
society are not best served by too harsh a sentence; but equally
so
they are not properly served by one that is too lenient. One must
always strive for a proper balance. In doing so due regard
must be
had to the objects of punishment.”
[26]
Accused no.1, 2, 4 and 8 have not really shown the existence of
substantial and compelling circumstances that would justify
a
departure from the prescribed minimum sentence of life imprisonment,
if their personal circumstances are looked at without considering
the
issue of their belief in witchcraft. This is especially so for such a
serious crime as the murder of the deceased. However,
it is a fact
that they would not have acted violently and killed the deceased but
for their firm belief that she had something
to do with the death of
Samkelo and Sihle through witchcraft. They are all not in the habit
of committing offences of whatever
nature especially violent crimes
hence they were all first offenders at ages of between 32 and 50 when
they attacked and killed
the deceased. They have been in prison for
more than two years since March 2020 when they were arrested. This
presentence incarceration
period must also be taken into account
[4]
.
[27]
I must emphasize that before this incident, most of the accused were
working for their families in the Western Cape and as
such they were
exemplary citizens who looked for and did find jobs to feed their
families instead of resorting to criminality.
Accused no.2 looked
after his livestock to put food on the table and even did odd jobs.
They were all related to the deceased while
accused no.2 was her
neighbour. There is no evidence of any issues with her until the
passing of Samkelo through a stabbing incident
in the Western Cape.
For no discernible reasons, the deceased was suspected of being
responsible for Samkelo’s death through
witchcraft. All this
having been said, a very clear message must be sent to the Majuba
community and to the society in general
that if anyone is attacked on
the basis of a senseless belief in witchcraft, courts will sentence
them to lengthy imprisonment.
This will be so even if in an
appropriate case it may not be life imprisonment, depending on the
circumstances of each case. There
may very well be cases in which,
despite an accused’s belief in witchcraft, prescribed minimum
sentences would be appropriate.
[28]
I take the view that the sentence of life imprisonment would not fit
the triad of crime, the accused and the society if the
motivation for
the crime committed were to be ignored in the overall consideration
of an appropriate sentence where it is ascertainable.
This is exactly
what, in my view, Scheiner JA meant in
Fundakubi
[5]
when he expressed himself as follows:
“
[T]he
subjective side is of very great importance, and that no factor not
too remote or too faintly or indirectly related to the
commission of
the crime, which bears upon the accused’s moral blameworthiness
in committing it, can be ruled out from consideration.
That a belief
in witchcraft is a factor which does materially bear upon the
accused’s blameworthiness I have no doubt.”
[29]
The above reasoning was very sound, with respect, in 1948 when the
Appellate Division expressed itself as it did in
Fundakubi
about
75 years ago, as it is now under the Minimum Sentences Act and
especially under the new constitutional dispensation. There
is no
doubt that each case must be assessed on its own factual matrix. I
have no doubt that the accused’s belief in witchcraft,
whatever
views one may have about the morality of the belief itself, had a
hugely significant role in the accused acting as they
did. It should
therefore qualify as a substantial mitigating factor and as such one
of the substantial and compelling circumstances
of the case that
should be considered as provided for in section 51 (3) of the Minimum
Sentences Act. The court should examine
what motivated the commission
of the offence and whether indeed the evidence paints a picture of an
accused who acted as he did
in committing the offence, subjectively
believed that he or his relative had been bewitched by the deceased.
In this case the evidence
all points to the accused subjectively
believing that Samkelo had been bewitched by the deceased and was
kept in a trunk in her
rondavel, bewildering as that may sound to
some in our country.
[30]
The test is not objective but subjective in my view. It would be akin
to throwing caution to the wind if this Court were not
to pay heed to
the guidance of Nuggent JA in
Malgas
[6]
in which the court stated the sentencing legal position as follows:
“
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.”
[31]
The fact that there was no evidence of witchcraft or the deceased
having bewitched the accused or their relatives is of no
moment. I do
not know if there is ever evidence of witchcraft. It is one of the
mysticisms that have been with us for centuries
and have steadfastly
survived modern civilisation and education. Even those who claim to
believe in witchcraft tend to struggle
to explain themselves
especially the basis of their belief. In other words, the issue is
not whether an accused person had a proper
basis for believing that
he had been bewitched or his relative had been bewitched, but whether
he subjectively believed that he
had been or his relative had been
bewitched by the deceased. On the facts of this case I find that the
accuseds’ belief in
witchcraft must be considered as a
substantial and compelling circumstance to justify a departure from
the prescribed minimum sentence
of life imprisonment.
[32]
Accused no.7 was only convicted of assault with intent to do grievous
bodily harm, which is a competent verdict for murder.
He was also
convicted of imputing witchcraft. He too must receive an appropriate
sentence that has regard to all the objectives
of punishment, taking
into account all his personal circumstances.
[33]
In the result the accused are sentenced as follows:
1.
Accused no.7 is sentenced to imprisonment for 5 years for assault
with intent to do grievous bodily harm, two years of which
is
suspended for 5 years on condition that he is not convicted of
assault with intent to do grievous bodily harm committed during
the
period of suspension.
2.
Accused no.7 is sentenced to two years imprisonment in respect of
count 2, imputing witchcraft on the deceased.
3.
The sentence referred to in 1 above in respect of accused no.7 shall
run consecutively with the sentence of 2 years imprisonment
for
imputing witchcraft referred to in 2 above. Therefore, accused no.7
shall serve an effective sentence of 5 years imprisonment.
4.
Accused no. 1, 2, 4 and 8 are each sentenced to two years
imprisonment in respect of count 2, imputing witchcraft upon the
deceased.
5.
Accused no.1, 2, 4 and 8 are each sentenced to 20 years imprisonment
for the murder of the deceased, 5 years of which is suspended
for
five years on condition that they are not convicted of murder
committed during the period of suspension.
6.
The sentence of two years imprisonment in respect count 2, imputing
witchcraft in respect of accused no.1, 2, 4 and 8 shall run
consecutively with the sentence referred to in 5 above. Therefore,
accused no.1, 2, 4 and 8 shall each serve an effective sentence
of 17
years imprisonment.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearance
Counsel for the State: L.
POMOLO
Instructed by: National
Director of Public Prosecutions
UMTATA
Counsel for accused no.1
& 7: V Ntshangase
Instructed by: Legal Aid
South Africa
UMTATA
Legal representative for
accused no.2: B. Krewu
Instructed by: Legal Aid
South Africa
UMTATA
Legal representative for
accused no.4: E.B. Sonqwelo
Instructed by: Legal Aid
South Africa
UMTATA
Legal representative for
accused no.8: M. Mahlombe
Instructed by: Legal Aid
South Africa
UMTATA
Date heard: 20 June 2022
Date delivered: 18 August
2022
[1]
S v Matyityi
2011 (1) SACR 40
(SCA) para 23.
[2]
S
v Phama
1997 (1) SACR 485
(ECG) at 487 b-d
[3]
S
v Ingram
1995 (1) SACR 1
(A) at 8i – 9b.
[4]
S
v Vilakazi
2009 (1) SACR 552
(SCA).
[5]
R v Fundakubi and Others
1948 (3) SA 810
(AD) at 818.
[6]
S v Malgas
2001 (1) SACR 469
(SCA) at para 14.