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[2021] ZAGPPHC 217
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S v Tsabane (CC10/2020) [2021] ZAGPPHC 217 (22 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA (BENONI)
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES :
YES
/ NO
(3)
REVISED
DATE:
....
22/1/2021
CASE
NO
: CC10/2020
DATE
:
2020.11.23
In
the matter between
THE
STATE
and
MANNANA SELINA
TSABANE
ACCUSED
SENTENCE
BROODRYK
,
AJ
: The accused may
be seated during the delivering of the sentence. The accused
has been convicted by this
court of murder, read with the provisions
of section 51(2) of Act 105 of 1997. The General Law Amendment
Act. In respect
of count 2, she has been convicted of defeating
or obstructing the course of justice. In respect of count 1,
there is a minimum
sentence prescribed in terms of Act 105 of 1997 of
15 years.
Following
conviction, Mr Maimela on behalf of the accused addressed the court
from the bar. He informed the court that the
accused would not
testify. The personal circumstances advanced in mitigation are
the following:
The accused is
39 years old. She has no previous convictions. Her
highest level of education is commensurate with a
grade 10 in South
Africa. I was told that she has two children, 18 and 14 years
old. They live in Lesotho and are looked
after by her sister
who is a subsistence farmer. There is still a father in the
picture, although he is also unemployed.
I was told
that accused is the sole breadwinner. She was earning R2 000
per month, paid by the mother of the deceased.
The accused
comes from an area in the Highlands of Lesotho which is known to be
extremely poverty stricken. Kids from this
area rarely go past
matric. I was told that the accused is very remorseful and as
Mr Maimela put it, she states that she
is sorry as to what happened.
He referred
the court to a well-known case of
State
v Zinn
(AD) which states that the court
in sentencing an accused must look at the triad which refers to the
offence itself, the interest
of society, as well as the personal
circumstances of the accused. He argued that the court must not
overemphasise the interest
of society and the seriousness of the
offence in respect of the personal circumstances of the accused and
that the court must show
some mercy to the accused.
Mr Maimela
then argued that the mitigating factors as indicated earlier,
cumulatively seen does constitute substantial and compelling
circumstances which would allow this court to deviate from the
prescribed sentence. He referred me to the case of
State
v Scott-Crossley
2008 (1) SACR 223
, a
judgment of the Supreme Court of Appeal paragraph 35 where it was
stated:
“
that
a court must not sacrifice an accused on the altar of deterrence and
that a sentence of excessive imprisonment does not serve
the interest
of society.”
He
also referred to the well-known of case of
State v Rabie
1975
(4) SALR 855
(AD) 862g. This judgment is very much in line with
the well-known judgment of
State v Zinn
, but he specifically
referred to the fact that the court must sentence an accused with
some mercy.
As to count 2,
Mr Maimela left the sentence in the hands of the court and he had no
address in respect of the provisions of section
103 of the Firearms
Control Act. Ms Scheepers before arguing, called the mother of
the deceased, Lerato Dora Mnguni.
This witness has already
earlier testified in this court.
Sentencing is
always a very difficult thing for a court to do, but to sit here and
to look at the mother of a small baby even more
so. A baby of
one year and nine months old who died in horrible circumstances, is
always difficult. The court’s
heart goes out to that
mother who stood here, fighting back the tears and testifying about
what this incident did to her.
She said she
was questioned about how this incident affected her and she stated
that it was very painful. She disputed the
fact that accused
was a breadwinner and referred to her sister who apparently look
after the children of the accused. There
is also a dispute
whether the accused in fact has children, but this court is not going
to enquire into that.
What is
important though is that this witness stated that the deceased was
her only child and therefore the death of the child was
very painful
to her. She does not have any siblings and the family gave her
strength to deal with his case. She referred
to the fact that
the accused had told lies to this court from day one. She says
this whole incident affected her extended
family. The family is
broken and she referred to the Mnguni and the Tshabalala family.
The deceased was the first grandchild
of the Mngunis. She
pointed out that what she wants to know in able to deal with this is
why the accused committed to the
offence as alleged. She wants
answers as to what happened, what exactly happened.
Mr Maimela
briefly cross-examined her and told the witness that the accused
said, she is very sorry for what has happened.
The witness
understandably did not accept it. She disputes the fact whether
the accused in fact has children. She testified
that the
accused had a sister, who would be able to pay the necessary school
fees as she was apparently able to pay the legal fees.
There was no
re-examination and the court enquired as to how old the deceased was
and I was informed that the deceased was one year
and nine months
old. Ms Scheepers on behalf of the state then addressed the
court. She pointed out to various aggravating
factors such as
the fact that the deceased was a boy of one year nine months old and
that he had his whole life ahead of him.
She pointed to
the fact that the accused was the caregiver of the deceased and she
was in a position of trust which she abused.
She referred to
the fact that the deceased was attacked in his own home, a place
where he should have felt safe. She referred
to the fact that
the accused clearly misled the mother of the deceased as to what
happened.
The parents
have lost their only child. The extended family has also
suffered. It was pointed out that the deceased
was a
defenceless child. It was pointed out that the accused showed
now respect in respect of the deceased, the child when
she was
testifying. She absolutely showed no emotion and that the
killing of children is obviously very serious.
She argued
that the court should find that there are no substantial and
compelling circumstances and that a sentence in excess of
15 years
should be imposed in respect of count 1, the murder count. In
respect of count 2, the state argued that defeating
the ends of
justice undermines the rule of law and that it cannot be allowed and
that the court should impose a sentence of imprisonment
in this
regard to be served concurrently with the sentence imposed in respect
of count 1, the murder.
As referred to
earlier in sentencing an accused, the court has to have regard to the
triad referred to in
State v Zinn
1969(2) SALR 537(AD) a very well-known Appellate Division case, which
says that the court must look at the interest of society,
the nature
and the seriousness of the offence as well the personal circumstance
so the accused and balance these three interests.
The court must
also look at the purposes of punishment which is prevention,
reformation, retribution and rehabilitation. In
the well-known
case of
State v Malgas
,
referred to in argument, it was set out by our Supreme Court of
Appeal that the court should not deviate as it was put, for flimsy
reasons from the prescribed minimum sentences. I was also
referred to the case of
State v Vilakazi
2009 (1) SACR at 552 (SCA) 58 where it was stated in cases where an
accused is convicted of such serious offences, personal circumstances
such as the age of an accused, whether he was working or not, whether
he has previous convictions or not, as a natural consequence
recede
into the background when the seriousness of the offence is
considered.
I was also
referred to the well-known case of
State
v Matyityi
which dealt with difference
between regret and remorse.
I am satisfied
on what was placed before me that the aggravating factors vastly
outweigh the mitigating factors in this case.
In fact, the
mitigating factors completely pale into insignificance when weighed
up against the aggravating factors.
Nothing can be
more aggravating than a baby boy of one year nine months old being
killed in his own home where he was supposed to
be safe and where the
perpetrator is his caregiver. A person who is in the position
of trust.
As to the
seriousness of the offence and the interest of community, as I
pointed out in argument this is already the second case
of the
infanticide that I have dealt with in the last month. It shows
the high incidence of these offences within the area
of jurisdiction
of this court. I find it a vicious, brutal attack on a
defenceless baby.
To my mind,
there is absolutely no question of any remorse or any regret or
taking of responsibility for the actions by the accused.
Her
allegation that she is sorry has a hollow sound to it and I reject
it. I found on the facts of this case that there was
no
motive. Now, after hearing arguments in respect of sentence, I
am not any wiser. I still do not know what the motive
for the
offence was and I will proceed to sentence the accused on the basis
of that, that there was no motive shown and that is
severely
aggravating as far as the accused is concerned.
It was a
vicious attack on the deceased and the true facts of the case which
only the accused knows was not placed before court.
I refer to
the fact that in the Whatsapp, which she sent to her sister, she
refers to the word blackmail even in the vernacular.
On the
merits, I have rejected her version that that means that she was
attacked. As I stated in my judgment on the merits,
blackmail
is usually hand in hand with kidnapping and money then comes into
play, but there are no facts for this court to find
in that regard.
The accused
had the key in her pocket. She just had to take out the key and
tell this court what motivated her, but she decided
not to do so and
must now suffer the consequences.
On behalf of
the state, I have been requested to consider imposing a sentence in
respect of the murder count, in excess of 15 years
imprisonment.
I agree with that proposition of the state on the facts placed before
this court. it is clear that the
sentence of 15 years would be
wholly inappropriate. I intend imposing a sentence in excess of
15 years. Both Ms Scheepers
and Mr Maimela, did not have any
address as to the provisions of section 103(1) of the Firearms
Control Act which relates to the
accused being declared unfit to
possess a firearm. They both agree that once accused has been
convicted of an offence such
as murder, she is automatically declared
unfit to possess a firearm.
Accused must
please stand. In respect of count 1 you are sentenced to 25
years imprisonment. In respect of count 2,
the defeating of the
ends of justice, you are sentenced to five years imprisonment.
In terms of the provisions of
section 280
of the
Criminal Procedure
Act 51 of 1977
, I order that the sentence imposed in respect of count
2, that is the five years’ imprisonment, be served concurrently
with
the sentence imposed in respect of count 1.
No order is
made in terms of the provisions of section 103(1) of the Firearms
Control Act. Do you understand your sentence?
BROODRYK,
AJ
ACTING
JUDGE OF THE HIGH COURT
DATE
:
2021.01.22
For
the State : Adv S Scheepers instructed by the Director of
Prosecutions,
Gauteng Division, Pretoria
For
the Defence : Adv Maimela