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[2021] ZAECMHC 39
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S v Songca (CC26/2018) [2021] ZAECMHC 39 (12 November 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. CC26/2018
In the matter between:
THE STATE
VS
ODWA
SQANDULO SONGCA
JUDGMENT ON SENTENCE
JOLWANA J
[1]
The
accused has been convicted of the offences of unlawful possession of
a firearm and ammunition in contravention of various provisions
of
the
Firearms Control Act 60 of 2000
. He has also been convicted of
the murder of sergeant Phumzile Michael Ntando. When the accused was
indicted the State invoked
the provisions of section 51(1) of the
Criminal Law Amendment Act 105 of 1997 (the Act). The provisions of
this section and its
implications were explained to the accused at
the commencement of the trial. In invoking this section, the State
raised two grounds.
The first one is that the deceased was a law
enforcement officer. The second ground is that the murder was planned
or premeditated.
It is common cause that the deceased was a police
officer stationed in Mount Frere. This is the very town in which he
was shot
and killed by the accused while sitting in his vehicle.
[2]
The
brazenness of this attack on a law enforcement officer in the middle
of the town is shocking. The State witnesses testified
that the
deceased parked his car near a car wash in which liquor was consumed
and sat in his vehicle. It is common cause that there
were many other
vehicles there where the deceased arrived and parked his vehicle.
[3]
The
deceased must have assumed that he was safe there precisely because
of the other vehicles that were there. After all he was
very well
known in the small town of Mt Frere because that is the very
community he served. It is common cause that the people
who were in
Bongani’s vehicle just a few vehicles behind the deceased’s
vehicle, including Simthandazile and other
State witnesses knew the
deceased very well. He parked his vehicle in an area in which he had
every reason to take for granted
that he was safe. It appears from
the evidence led before this Court that the accused had a long
standing grudge against the deceased.
There was evidence by State
witnesses that the accused did not hide his dislike for the police
officer. On the night on which he
murdered him by shooting him
several times on his upper body, State witnesses testified that when
he saw the deceased parking his
vehicle he said, “here is this
dog”. This utterance and other circumstantial evidence clearly
indicates that the murder
was not only that of a law enforcement
officer but also premediated. On either of these bases the sentence
prescribed in terms
of section 51(1) of the Act is life imprisonment.
[4]
However,
this Court has a discretion to depart from imposing the prescribed
sentence of life imprisonment if this Court finds that
there are
substantial and compelling circumstances for it to do so. Section
51(3) of the Act provides in part as follows:
“
If any court
referred to in subsections (1) and (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 …”
[5]
Mr
Ntikinca who appeared for the accused made a number of submissions on
the basis of which he sought to persuade this Court to
exercise its
judicial discretion and impose a lesser sentence by departing from
the prescribed minimum sentence. One of the most
ironical of the
accused’s personal circumstances is the fact that he is a first
offender as the State did not prove any previous
conviction against
him. The irony is that the evidence of warrant officer Maliwa was
that the deceased was going to testify in
two cases against him, the
first one being possession of a suspected stolen property, which was
an engine of a motor vehicle. The
second case was vehicle hijacking.
Whether or not the accused would have been convicted of these
offences is unknown. What the
evidence of warrant officer Maliwa
indicates is that the deceased was murdered not only because he was a
police officer but mainly
because he was one of the investigating
officers in those two cases in which the accused had been charged.
[6]
It
is common cause that on the very day on which he murdered sergeant
Ntando the accused had been to Mount Frere police station
and signed
as one of his bail conditions in respect of a case on which he had
been released on bail. The firearm and ammunition
he used to shoot
and kill the deceased were unlicenced and therefore the accused was
in contravention of the law even in possessing
that firearm and
ammunition. He clearly demonstrated his disrespect for the law and
his disregard for the justice system by using
the freedom of being
granted bail to murder a police officer who was investigating him
with an unlicenced firearm. There was even
evidence that the firearm
he used to murder sergeant Ntando was stolen from one of his
colleagues who spent time and drank alcohol
with the accused.
However, it is so that he is a first offender in this case as he has
not been previously convicted of any criminal
offence.
[7]
The
other personal circumstances of the accused are the fact that he is
unmarried and has two minor children. It was submitted that
before
his arrest for this case he looked after the two minor children. It
was further submitted that he is relatively young at
27 years of age.
Mr Ntikinca submitted that while he accepted that this Court has a
discretion on what an appropriate sentence
should be, he urged this
Court not to sentence the accused heavily because of its indignation
with the serious offences for which
he has been convicted especially
the murder of a law enforcement officer. He further submitted that
even the convictions of the
community of Mount Frere and the society
in general should not lead to the court not showing leniency to the
accused in light of
his personal circumstances.
[8]
As
far as the minor children are concerned, no evidence was placed
before this Court on the actual role the accused personally played
in
raising his children. The submission ended with a mere bald
submission that he looked after the minor children. This is even
more
important in light of the fact that his own evidence was that he had
a number of taxi cabs through which he ran a business
ferrying
passengers in Mount Frere. It was also submitted that the minor
children are now being looked after by his twin sister.
An accused
person must, in my view, do more than merely submitting, through his
legal representative, that he has minor children
that he looks after.
There must be clarity on the role he played through evidence so that
the State can verify that and the court
is placed in a better
position to decide how best to deal with that issue. In
S v
Vilakazi
2009 (1) SACR 552
(SCA) at 574 c-f, the Supreme Court of
Appeal stated the legal position as follows:
“
[58] The personal
circumstances of the appellant, so far as they are disclosed in the
evidence, have been set out earlier. In cases
of serious crime the
personal circumstances of the offender, by themselves, will
necessarily recede into the background. Once it
becomes clear that
the crime is deserving of a substantial period of imprisonment the
questions whether the accused is married
or single, whether he has
two children or three, whether or not he is in employment, are in
themselves largely immaterial to what
that period should be, and
those seem to me to be the kind of ‘flimsy’ grounds that
Malgas
said should be avoided. But they are nonetheless
relevant in another respect. A material consideration is whether the
accused can
be expected to offend again. While that can never be
confidently predicted his or her circumstances might assist in making
at least
some assessment. In this case the appellant had reached the
age of 30 without any serious brushes with the law. His stable
employment
and apparently stable family circumstances are not
indicative of an inherently lawless character.”
[9]
In
aggravation of sentence the State called the wife of the deceased.
She testified that she and the deceased have two minor children.
The
deceased was a loving husband to her and a loving father to his
children. He was very close to his first born of the two minor
children who, to date, continues to ask difficult questions
concerning her father. The deceased’s mother who is now 88
years
old has been badly affected by the killing of her son and has
been struggling with his untimely death since 2018. It was heart
rending to also hear that in addition to the loss of a loved one the
widow and her children, more than three years later, have not
yet
been given any form of financial support by sergeant Ntando’s
employer, the South African Police Service in line with
their
policies and regulations.
[10]
As
if the death of her husband and father to her children was not bad
enough, Mrs Ntando testified that not only have they not been
given
any form of financial support that would have been due to them
following sergeant Ntando’s untimely death, they have
not even
been given professional counselling by his former employer. This must
mean that nobody really knows the true impact of
the trauma of the
death of their father on the two minor children. The only counselling
they received was, according to Mrs Ntando,
from her sisters in law
who have been very supportive. This is like the wounded bandaging
each other’s wounds with the little
emotional strength they
have as the Ntando family all of whom lost a son, husband, father,
brother, or even uncle etc.
[11]
The
murder of a police officer whose job is to protect the community even
at the risk of his own life is a very serious offence.
Mr Baliwe
described this as tantamount to challenging the authority of the
State. For this reason and many other aggravating factors
he urged
this Court not to depart from the prescribed minimum sentence of life
imprisonment. He referred to some of the evidence
of Mrs Ntando in
which she testified that she did not see anything suggestive of
remorse for murdering her husband on the part
of the accused. It is
indeed so that the accused showed no remorse whatsoever.
[12]
In
S v Jansen
2020 (1) SACR 413
(ECG) at para 25 after looking at
previous authorities the court once again explained the approach to
the prescribed minimum sentences
as follows:
“
In
S v Matyityi
the Supreme Court of Appeal, with reference to
Malgas
,
emphasized that the courts are obliged to impose the prescribed
sentences despite any personal doubts about the efficacy of the
policy underlying the Act or the presence of a personal aversion to
the minimum sentencing regime. In
Dodo
the Constitutional
Court found that the
Malgas
approach to sentencing constituted
“an appropriate path which the Legislature doubtless intended,
respecting the Legislature’s
decision to ensure that
consistently heavier sentences are imposed in relation to the serious
crimes while at the same time promoting
the spirit, purport and
objects of the Bill of Rights.” The proper approach, according
to
Matyityi
is that the point of departure of the sentencing
court must be that the prescribed sentences are generally appropriate
for the
kind of offences specified, unless there are substantial and
compelling factors justifying a departure therefrom. This is
consistent
with what Cameron J in
Center for Child Law v Minister
of Justice
said are the two operative effects of the minimum
sentencing legislation:
“
First, the
statutorily prescribed minimum sentences must ordinarily be imposed.
Absent ‘truly convincing reasons’ for
departure, the
scheduled offences are ‘required to elicit a severe,
standardized and consistent response from the courts
through
imposition of the ordained sentences. Second, even where those
sentences do not have to be imposed because substantial
and
compelling circumstances are found, the legislation has a weighing
effect leading to the imposition of consistency.”
[13]
I
have carefully considered all the circumstances of this case in
particular the personal circumstances of the accused in light
of the
very difficult balancing task the law places on the sentencing courts
in deciding an appropriate sentence. I am not persuaded
that the
personal circumstances of the accused considered individually and
cumulatively, in the circumstances of this case, amount
to the
substantial and compelling circumstances envisaged in our law, for
the purposes a departure from the prescribed minimum
sentence of life
imprisonment.
[14]
In
the result the accused is sentenced as follows:
1.
Count
4, possession of an unlicensed ammunition the accused is sentenced to
two years imprisonment.
2.
Count
3, unlawful possession of a firearm, the accused is sentenced to five
years imprisonment.
3.
Count
2, murder, the accused is sentenced to life imprisonment.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel for the
State: M.
BALIWE
Instructed
by: NPA
MTHATHA
Counsel for the
Accused: L.F. NTIKINCA
Instructed
by: Legal
Aid South Africa
MTHATHA
Date
head: 11
November 2021
Delivered
on: 12
November 2021