S v Mpeyi and Others (CC20/2020) [2021] ZAECMHC 43 (26 November 2021)

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[2021] ZAECMHC 43
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S v Mpeyi and Others (CC20/2020) [2021] ZAECMHC 43 (26 November 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. CC20/2020
In
the matter between:
THE
STATE
VS
MSIMELELO
MPEYI
Accused No.1
AZOLA
SHAI
Accused No.2
LINDIKHAYA
KRATSHI
Accused No.3
REANETSE
TSOSI
Accused No.4
NKOSISIVE
JIKA
Accused No.6
CINGICEBO
NGXAME
Accused No.7
JUDGMENT ON
SENTNCE
JOLWANA
J
[1]
Accused nos. 1, 2, 3 and 4 have been convicted of kidnapping, robbery
and the murder of Mr Sandile Ntloko on 26 September 2019.
Accused nos. 6 and 7 have only been convicted of kidnapping and
robbery in respect of the same incident.  In respect of robbery
and murder charges the provisions of
section 51
of the
Criminal Law
Amendment Act 105 of 1997
were invoked by the State.  This
section prescribes a minimum sentence of 15 years and life
imprisonment respectively for robbery
and murder unless substantial
and compelling circumstances are shown to exist which justify a
departure from the prescribed minimum
sentences.
[2]
The principles that should be applied in considering whether
substantial and compelling circumstances exist were set out as
follows
in
S v Malgas
2001 (1) SACR 469
(SCA):
“
A.
Section 51
has
limited but not eliminated the court’s discretion in imposing
sentence in respect of the offences referred to in
Part 1
of Schedule
2 (or imprisonment for other prescribed periods for offences listed
in other parts of schedule 2).
B.
Courts are required to
approach the imposition of sentence conscious that the Legislature
has ordinated life imprisonment (or the
particular prescribed period
of imprisonment) as the sentence that should ordinarily and in the
absence of weighty justification
be imposed for the listed crimes in
the specified circumstances.
C.
Unless there are and
can be seen to be, truly convincing reasons for a different response,
the crimes in question are therefore required
to elicit a severe,
standardised and consistent response from the courts.
D.
The specified sentences
are not to be departed from lightly or for flimsy reasons.
Speculative hypotheses favourable to the
offender, undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the
legislation, and marginal
differences in personal circumstances or degrees of participation
between co-offenders are to be excluded.
E
. The Legislature has
however, deliberately left it to the courts to decide whether the
circumstances of any particular case call
for a departure from the
prescribed sentence.  While the emphasis has shifted to the
objective gravity of the type of crime
and the need for effective
sanctions against it, this does not mean that all other
considerations are to be ignored.
F
. All factors (other than
those set out in D above) traditionally taken into account in
sentencing (whether or not they diminish moral
guilt) thus continue
to play a role; none is excluded at the outset from consideration in
the sentencing process.”
[3]
The facts are briefly that accused no.6 had accompanied the deceased
to where Achumile was which was accused no.3’s homestead.
Accused
no.3 joined the deceased, Achumile and accused no.6 in what the
deceased intended to be a harmless date with Achumile
and alcohol
consumption at Impolo in the small town of Sterkspruit.  At some
point he was subdued in his vehicle by accused
no.6 and his friends
with Achumile’s acquiescence.  He was eventually kidnapped and
forced to reveal is bank card pin code.
His money was
transferred from his bank account to those of accused nos.1 and
accused no.7 at the behest of accused no.6.  He
ended up being
killed at a remote rocky place in Mokhesi.  The following day
the bulk of the balance remaining in his bank account
in the sum of
R5000.00 was withdrawn, using his bank card while he was lying dead
with his head badly injured and fractured and having
been stabbed in
his chest.  The offences committed in this matter are indeed
very serious offences especially if regard is had
to the condition in
which the deceased’s body was found.
[4]
The legal representatives of the accused made submissions urging this
Court to depart from the prescribed minimum sentences.
In
addition to the individual personal circumstances of each accused it
was submitted on behalf of all the accused that alcohol consumption
played a role in the actions of the accused which culminated in the
serious criminal activities that ensued.  Indeed the evidence
in
this matter makes it plain that the deceased was quite generous in
buying alcohol.  In fact some of the accused joined in
on the
understanding that alcohol consumption was going to be in the
offing.  The photo album in this matter depicts, in photo
number
25, a few empty bottles of beer which were found inside the
deceased’s vehicle.
[5]
At the time of the commission of the offences in 2019 the accused’s
ages ranged between 20 and 30 years old.  They all
have minor
children.  All of them were unemployed save for accused no.3 who
was said to be working as a bricklayer while all
the others were
doing odd jobs here and there.  All the accused are unmarried
and none of them was said to be a care giver in
respect of their
children.  Some of them only contributed financially to the
upbringing of their minor children when they were
able to do so.
Accused number 6 is also receiving treatment for tuberculosis.
The personal circumstances of all the accused
can fairly be described
as being generally typifying those of the many young people in this
country where the majority of them are
unemployed and some of them
end up abusing drugs and alcohol.
[6]
Accused no.3 was 32 years old in 2019 when he committed these
offences in this matter. He was convicted in 2012 for a drug related
offence and sentenced to a fine of R1000.00 or three months
imprisonment.  In 2013 he paid an admission of guilt fine of
R100.00
for another drug related offence.  On 19 July 2016 he
was convicted of housebreaking with intent to commit an offence.
He was thereupon sentenced to 12 months imprisonment which was wholly
suspended for 5 years on condition that he was not convicted
of
housebreaking committed during the period of suspension.  While
this history of accused no.3’s brushes with the law indicates
an
inclination to break the law, the convictions are themselves not
relevant for the purposes of determining the question of whether
or
not the prescribed minimum sentences should be departed from.
The same applies to accused no.4 who paid an admission of
guilt fine
of R200.00 for a drug related offence in 2016.  He was 25 years
old when he committed these offences. The State proved
no previous
convictions for accused nos. 1, 2 and 7.
[7]
On the other hand accused no.6 stands on a different footing when it
comes to criminal conduct.  In 2013 he was found guilty
of rape
and sentenced to 10 years imprisonment.  This means that he was
out on parole on a very serious offence when he committed
the crimes
for which he has been convicted in this matter. What this shows is
accused no.6’s unwillingness to comply with the society’s
rules
for peaceful co-existence or continued disregard for the same.
However, it is not without significance that when the question
of
what to do with the deceased was discussed at Mokhesi he indicated
that the deceased should not be killed.  According to
the
evidence of accused no.7 accused no.6 also tried to stop accused nos.
1, 2, 3 and 4 from killing the deceased.  It was submitted
on
his behalf that he was very sorry for the crimes he committed and
that it was a situation that just went beyond what he had originally
intended.  His original intentions were to enjoy liquor with his
friends for which the deceased would be paying.  He was
also
very sorry for the life that was lost in this incident.  He was
prepared to accept any punishment meted out to him for
the crimes for
which he was convicted.
[8]
Accused no. 7 was 26 years old when he committed these offences for
which he must now be sentenced. An impassioned plea was made
on
behalf of accused no.7 by his legal representative pleading with this
Court not to sentence him too heavily.  It was pointed
out that
the crimes he committed must inevitably lead to a sentence of direct
imprisonment but still that sentence should be blended
with mercy.
It was submitted that when the vehicle stopped at Mokhesi and the
deceased was chased and assaulted he tried to
intervene to stop his
co-accused from killing him.  Indeed the evidence in the main
trial was that he tried to stop the other
accused from harming the
deceased.  Furthermore, he also had no role in the deceased
being tied with shoe laces.  It should
also be remembered that
accused no.6 had made the suggestion that the deceased should just be
tied with shoe laces instead of being
killed after it had been
suggested by accused no.3 that he should be killed because he knew
them and he knew their homesteads.
[9]
It was also submitted that accused no.7 had attended a traditional
ceremony at his father’s homestead and was on his way to
his own
homestead when he got a lift from the deceased’s vehicle.
When he heard that there was going to be liquor consumption
he
changed his mind about going home and decided to join the other
accused who were known to him for the possibility of free alcohol
consumption.  It was submitted that in making this error of
judgment he was influenced by alcohol which he had consumed at his
father’s homestead and that he was ordinarily not a regular
drinker. This led to his involvement in the crimes that were
committed.
However, in this Court’s search for the truth
about what happened he played a significant role in closing whatever
gabs were there
in the evidence of Achumile and in some instances
corroborated her evidence in disclosing the roles played by his
co-accused in the
murder of the deceased.  He had also testified
about what he discussed with some of his co-accused after they were
arrested
all of which contributed significantly in this Court knowing
more about what happened in this matter.
[10]
In 2018 he got a job in Mpumalanga province where he earned
R5600.00.  He used his earnings to support his family.
Unfortunately, he lost that job in 2019.  He was preparing to do
a learner’s licence at the time of this incident in order
to obtain
a driver’s licence.  He also did grass cutting from which he
earned about R200.00 a day when he got a job and used
the money to
support his mother who is frail and diabetic and also has high blood
pressure.  Before his arrest he would take
his mother to the
doctors and generally looked after her.  He is a first offender
and only got involved in these crimes because
of the possibility of
free alcohol and he never foresaw that there would be criminal
activities.  After these offences were
committed and he heard
that police were looking for him he could have run away to
Mpumalanga.  However, he handed himself to
the police.
[11]
On the evidence led during trial it is apparent that the accused
initially got involved in this matter because they were looking
forward to getting free alcohol as against planning to commit the
offences.  It is indeed so that the deceased did generously
provide free alcohol to these men all of whom he did not know save
for accused no.6.  His relationship with accused no.6 and
where
they met remains unknown because accused no.6 decided not to
testify.  It is unclear if the deceased and accused no.6
knew
each other even though they arrived together at the home of accused
no.3 where they were looking for Achumile.  That the
deceased
ended up lying dead at the hands of some of the accused to whom he
had provided free alcohol is bewildering.
[12]
Mr Mhlabunzima Ntloko who is the brother of the deceased testified in
aggravation of sentence.  From his evidence it is
clear that the
deceased was a pillar of the community at large.  He was an
educator teaching maths and physics.  He would
invite learners
to his home and give them extra lessons for free in these subjects
that tend to be very difficult for learners.
The deceased was
married with four children, three of whom went up to grade 12 and the
last born dropped out of school after his
father’s death.  The
businesses of the deceased closed down because there was no one to
run them.  On Mr Ntloko’s evidence
it is not only the Ntloko
family to whom the deceased was a uniting figure but also the whole
community has suffered.  The deceased’s
businesses provided
employment to four members of the community who lost their jobs upon
his death.
[13]
The community of Macacuma where he lived during his lifetime and the
society in general are without a doubt devastated and indignant
about
his brutal killing. Their anger is justified and their expectations
that the accused be given stiffer sentences must be taken
into
account.  These senseless murders have become the order of the
day in this country.  The Legislature passed the minimum
sentence legislation in order to try and arrest this situation of
violent crime that has spiralled out of control.  The society
is
looking upon the courts to pass stiffer sentences for these violent
crimes to send a clear message to all criminals and would
be
criminals out there that they will be dealt with severely by the
courts.
[14]
If one looks at the personal circumstances of all the accused, they
are typical of the societal problems of broken families and
in some
instances absent fathers or fathers who play no role in raising their
children.  The spiralling unemployment of the
youth who end up
frequenting alcohol vending places like taverns is a well-known
phenomenon.  Some of these youths end up committing
some of the
serious crimes that have engulfed this country.  All the accused
have children who are minors.  It does not
appear that they
played much of a role in the upbringing of their children.  This
is hardly surprising considering the fact
that they were mostly all
unemployed when they committed these crimes.  There is not much
that can be said about the personal
circumstances of the accused
beyond the fact that they are mostly first offenders.
[15]
However, as pointed out in
Director of Public Prosetutions,
Kwa-Zulu Natal v P
2006 (1) SACR 243
(SCA) at 250, the
consideration of an appropriate sentence does not end only with the
personal circumstances of the accused.
In that case the court
said:
“
The so-called traditional
approach to sentencing required (and still does) the sentencing court
to consider the triad consisting of
the crime, the offender and the
interests of society.  In the assessment of an appropriate
sentences the court is required to
have regard to the main purposes
of punishment, namely the deterrent, preventive, reformative and the
retributive aspects thereof.
To these elements must be added
the quality of mercy, as distinct from mere sympathy for the
offender.”
[16]
While the Ntloko family and the community of Macacuma would be
justified in seeking the severest possible punishment for the
accused
who senselessly took away the life of a man of the calibre of Mr
Sandile Ntloko our courts have been cautioned against deciding
a
sentence on the basis of the justified anger of the community.
In
S v MM
2013 (2) SACR 292
(SCA) the court explained the
applicable principles as follows:
“…
It is equally important to
remind ourselves that sentencing should always be considered and
passed dispassionately, objectively and
upon a careful consideration
of all relevant factors.  Public sentiment cannot be ignored,
but it can never be permitted to
displace the careful judgment and
fine balancing that are involved in arriving at an appropriate
sentence.  Courts must therefore
always strive to arrive at a
sentence which is just and fair to both the victim and the
perpetrator, has regard to the nature of
the crime and takes account
of the interests of society.  Sentencing involves a very high
degree of responsibility which should
be carried out with
equanimity.”
[17]
Our courts have always emphasised the fact specific and
individualistic nature of our sentencing regime and the centrality of
what is referred to as the
Zinn
triad in our sentencing law.
All the accused have spent just over two years awaiting trial in
police custody.  The delay
in the commencement of the trial was
not of the making of the accused.  As was pointed out in
S v
Dlamini
2012 (2) SACR 1
(SCA) the period of pre-sentence
incarceration while an accused is awaiting trial is part of the
considerations that must be taken
into account as the court exercises
its sentencing judicial discretion.  In
Dlamini
this is
how Cachalia JA expressed himself at paragraph 41:
“
This brings me to the 10
months Mr Dlamini spent in custody before he was sentenced, which as
I have mentioned, neither the magistrate
nor the High Court took into
account in deciding the appropriate sentence.  It is trite that
the period an accused is held in
custody while awaiting completion of
his trial should be taken into account when deciding on the
appropriate sentence.  This
is done by making the period of
imprisonment actually imposed shorter than it would otherwise have
been”.
[18]
Accused nos. 1, 2 and 7 were 22, 20 and 26 years old respectively in
2019 when these offences were committed. They are first
time
offenders while accused no.3’s previous brushes with the law, at
most attracted sentences that had an alternative of a fine
or an
admission of guilt fine while another sentence was wholly suspended
on condition that he was not convicted of housebreaking
committed
during the period of suspension. I consider it appropriate that even
accused no. 3 and 4 should be regarded, for present
purposes, as
first offenders. Accused no.4 was 25 years old in 2019 when these
offences were committed. He paid an admission of guilt
fine for a
drug related offence in 2016.  In my view none of these previous
brushes with the law must lead to the minimum sentences
prescribed
necessarily not being departed from.
[19]
However, the same cannot be said about accused no.6.  He had
been released on parole when he committed the serious offences
for
which he has been convicted in this matter.  In September 2013
he was convicted and sentenced to 10 years imprisonment for
a rape
offence.  In September 2019, before the 10 year period had
elapsed he abused the parole system which allowed for his
release
before he had completed his sentence and committed these offences for
which he must now be sentenced.  He clearly did
not learn any
lessons from the period he served in prison for rape.  This in
my view, must be taken into account in the consideration
of an
appropriate sentence for him.  To his credit through, he was not
convicted on the murder charge in this matter.
In fact, the
evidence in the main trial was to the effect that he and accused no.7
did try to prevent the killing of the deceased
as I said before.
[20]
Accused no.7 is also a first offender.  He not only tried to
stop the assault on the deceased, he played a very significant
role
with his evidence and therefore assisting this Court in knowing more
about the truth inter alia, about what happened to Mr Ntloko
and more
importantly, who killed him.  On the other hand accused nos.1,
2, 3 and 4 were bent on misleading this Court and tried
to shield
themselves from accounting for the killing of Mr Sandile Ntloko by
resorting to obfuscation and downright lies.  Now
that the truth
is known with the evidence of the
section 204
witness and the
evidence of accused no.7, accused nos. 1, 2, 3 and 4 must be given
harsher sentences and be made to account for the
crimes especially
for Mr Ntloko’s life.
[21]
However, a departure from the prescribed minimum sentences is
justified in my view.  The whole history of this matter and
the
entire factual matrix points to all the accused mostly having been or
deciding to join the others for alcohol consumption for
which the
deceased was prepared to pay.  On the other hand accused no.3
was invited by the 204 witness.  Accused no.3 and
Achumile
stayed together after all and she was being taken out on a date by
the deceased.  Accused no.4 was also invited by
accused no.6 and
fetched from his home where he and accused no.2 were sleeping.
They both decided to go with accused no.6.
Accused no.7 was
picked up at a hiking spot on his way home that night.  He
alighted at his bus stop which incidentally, was
where accused no.1
was going to be picked up.  Accused no.1 had also been phoned by
accused no.6 to join the group.  The
initial intention appears
to have been to get free liquor at the expense of the deceased with
Achumile being the bait.  Another
interesting irony is that
accused no.1 was Achumile’s boyfriend.
[22]
At some point they decided to kidnap and rob the deceased.
Alcohol or at least the desire to have it for free clearly played
a
role in the decisions they made which had tragic consequences.
It is highly regrettable that a human life, particularly that
of a
man such as the deceased who was described by Mr Ntloko as having
played a role in uplifting his family and the community at
large in
various ways.  However, I find that all the circumstances
referred to above are some of the substantial and compelling
circumstances which ought to be taken into account.  The
prescribed minimum sentences would be disproportionate and therefore
inappropriate for the circumstances in which these offences were
committed.  All the accused including those who have had some
brushes with the law save for accused no.6 can fairly and properly be
described as first offenders.  They have already spent
more than
two years in pre-sentence incarceration while awaiting trial.
All of them were in their homes on the night in question
when accused
no.6 came knocking or called.  The deceased had come to see
Achumile with whom he was interested in a love relationship.
He
did not object when Achumile came along with her cousin accused no.3,
joining him and accused no.6.  At this early stage
of that
evening all concerned were looking forward to the night of fun and
drinks at Impolo for which the deceased was evidently
happy to pay.
There was not, on the evidence, the slightest indication that
violence might be visited upon the deceased at
that stage.
[23]
As I indicated in the main judgment at some point things escalated
and ultimately the deceased was lying dead at Mokhesi.  Accused
no.6 might have, at some point, conceived an idea for the deceased to
be robbed which he implemented with the help of his friends,
and
co-accused. That would not have included the deceased being
murdered.  In fact he tried to stop the others from going ahead
with it on at least two occasions.  The first one was when there
was a brief discussion on what to do with the deceased after
it was
known that there was a search party for him involving the police.
On this occasion he came up with the idea of the deceased
being tied
with shoe laces so that if he went to the police they would account
for robbing him and not for his murder.  It appears
that they
might have panicked when the deceased tried to run away to save his
life after prison language was spoken.  The second
one was when
he and accused no.7 tried to dissuade their co-accused from
assaulting the deceased.  It is also not without significance
that the prosecutor in this matter also expressed a view which was in
support of the notion that the facts of this matter do justify
a
departure from the prescribed minimum sentences.  In doing so he
essentially agreed with the submissions made on behalf of
the accused
which was that substantial and compelling circumstances do exist in
this matter and that the prescribed minimum sentences
are therefore
inappropriate.
I
have therefore come to the conclusion that the prescribed minimum
sentences are inappropriate for the personal circumstances of
the
accused and the circumstances in which the crimes were committed.
[24]
In the result the accused are sentenced as follows:
1.
All the accused are sentenced to 5 years imprisonment in respect of
count 1, kidnapping.
2. Accused nos. 1,
2, 3 and 4 are sentenced to 10 years imprisonment in respect of count
2, robbery with aggravating circumstances.
3. Accused no.6 is
sentenced to 10 years imprisonment in respect of count 2 robbery with
aggravating circumstances.
4.  Accused
no.7 is sentenced to 10 years imprisonment in respect of count 2,
robbery with aggravating circumstances, five years
of which is
suspended for five years on condition that he is not convicted of the
offence of robbery committed during the period
of suspension.
5. Accused no.1, 2,
3 and 4 are sentenced to 25 years imprisonment each, five 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 sentences
referred to in 1 and 2 above are ordered to run concurrently with the
sentences referred to in 3, 4 and 5 above.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel for the
State          : L.
POMOLO
Instructed
by
: NPA
UMTATA
Legal representative
for accused nos. 1 & 4: A. NOHIYA
Instructed by

: Legal Aid South Africa
UMTATA
Legal representative
for accused nos. 2 & 3: B. KREWU
Instructed by

: Legal Aid South Africa
UMTATA
Legal representative
for accused no.6: V. NTSHANGASE
Instructed by

: Legal Aid South Africa
UMTATA
Legal representative
for accused no.7: Z. NOMLALA
Instructed by

: Legal Aid South Africa
UMTATA
Date
heard
: 17 November 2021
Delivered
on
: 26 November 2021