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2020
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[2020] ZALMPPHC 55
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S v Mashiane and Another (CC 91/2018; 10/2/11/1-L58/2018) [2020] ZALMPPHC 55 (10 June 2020)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED:
YES
CASE
NO: HGH: CC 91/2018
DPP
REF NO: 10/2/11/1-L58/2018
10/6/2020
In
the matter between:
THE
STATE
AND
MASHIANE,
KABELO RAYMOND
ACCUSED 1
MATHABATHA,
JOHANNES KGAUGELO
ACCUSED 2
JUDGMENT
MUDAU,
J:
[1]
The two accused appeared before this
court on six charges, namely, murder read with the provisions of
section 51 (1) of Act 105
of 1997 (count 1); two counts of robbery
with aggravating circumstances read with section 51 (2) of Act 105 of
1997 (counts 2 and
3); the contravention of section 4 (1) (a) as well
section 90 and other relevant provisions of Act 60 of 2000 further
read with
section 250 of Act 51 of 1977 (possession of a prohibited
fully automatic firearm and ammunition- counts 4 and 5
respectively;)lastly,
rape (count 6) in contravention of section 3
read with other relevant provisions of Act 32 of 2007 further read
with section
51 (1) Act 105
of 1997. Accused 1, Kabelo Raymond
Mashiane was found guilty in respect of all six charges (counts1, 2,
3, 4, 5, and 6) as charged.
Accused 2, Kgaugelo Johannes Mathabatha
was found guilty on counts 1, 2, 3, and 6, as charged but was
acquitted on the remaining
charges. The doctrine of common purpose
was found to be applicable. It remains to deal with the question of
sentence, which is
not an easy task.
[2]
It is trite that in the determination of
an appropriate sentence, the personal circumstances of an accused,
the nature of the offence
or offences committed, and the interests of
the community must be considered according to the well
established Zinn triad.
[1]
In the assessment of an appropriate sentence, regard must be
had,
inter alia,
to
the main purposes of punishment mentioned by Davis AJA in
R
v Swanepoel
[2]
,
namely, deterrent, preventive,
reformative and retributive.
[3]
[3]
However, as Schreiner JA stated in
R
v Karg
[4]
:
"It is not wrong that the natural indignation of interested
persons and of the community at large should receive
some
recognition in the sentences that
Courts impose, and it is not irrelevant to bear in mind that if
sentences for serious crimes are
too lenient, the administration of
justice may fall into disrepute and injured persons may incline to
take the law into their own
hands. Naturally, righteous anger should
not becloud judgment.”
[5]
[4]
In summary, punishment should fit the
criminal as well as the crime, be fair to society and be blended with
a measure of mercy according
to the circumstances.
[6]
In the instant case the accused's sentencing is subject to the
relevant provisions of the Criminal Law Amendment Act, 105
of 1997
("the CLAA") which prescribes a variety of mandatory
minimum sentences to be imposed by the courts in respect
of a wide
range of serious and violent crimes that include murder, rape and
aggravated robbery cases. The accused were warned in
this regard at
the commencement of the trial.
[5]
Accordingly, the accused face a minimum sentence of life imprisonment
in respect of
count 1, 6 and a minimum of 15 years imprisonment in
respect of the aggravated robbery charges (counts 2 and 3), unless I
find
there are substantial and compelling circumstances justifying a
departure from the prescribed minimum sentences. The
accused face a mandatory life term of imprisonment
in respect of count 1 because the death of the victim was
caused by
the accused in committing or after having committed robbery with
aggravating circumstances in respect of count 2. Also,
because the
offence was committed by the accused acting in the execution or
furtherance of a common purpose or conspiracy.
[6]
Concerning the rape charge, the accused face life imprisonment
because the victim
was raped more than once whether by the accused
and as co perpetrators. In terms of the Sexual Offences Act 32
of 2007, it
matters not whether the accused use their fingers or
penis in penetrating the surviving victim's genitalia. In addition,
they face
life imprisonment because the victim was raped by the two
accused under circumstances where they acted in the execution or
furtherance
of a common purpose or conspiracy.
[7]
Both accused testified in mitigation of
sentence. Accused 1 (Mashiane) is 34 years of age. He was 31 years of
age when the crimes
were committed. He is a grade 11 dropout. He is
not married, but a father of 2 minor children, aged 9 and 5 years
respectively.
The minor children are in the care and custody of his
girlfriend, their biological mother. He also helped to maintain his
nephews,
born of his unemployed sister. His biological mother died at
an early age but his father is alive.
[8]
On accused 1's version, he had a
difficult upbringing. He expressed
a
view
that life imprisonment would be
disproportionate to the crimes. He expressed fear of the current
corona virus, a pandemic that is
gripping the country, but confirmed
that prisoners are issued with new facial masks daily. He had nothing
else to say with regard
to the question of sentencing because of the
reason that, on his account, he committed no offence.
[9]
Accused 1 was a truck driver at the time
of his arrest from which he derived approximately R4000-00 per month.
Accused 1 is a first
offender. He has been in custody since the date
of his arrest in 2016 a period of approximately three and half years.
He admitted
to some old previous convictions. In 2008, he was
convicted of two counts of assault for which he was fined R500-00 or
one-month
imprisonment in respect of each count suspended for a
period of three years on customary grounds.
[10]
In 2014, accused 1 was convicted of
reckless or negligent driving as well as inconsiderate driving in
contravention of the relevant
provisions of Act 93 of 1996. Both
counts were taken as one for purposes of sentence. He was fined R10
000-00 or was to serve one
year imprisonment wholly suspended on the
usual grounds.
[11]
In his address regarding mitigation of
sentence, counsel for the accused 1, Mr Nonyane urged this court to
find substantial and
compelling factors from the above overall facts
that justifies a departure from the mandatory minimum sentencing
regime. Counsel
was of the view that since accused number one did not
rape the surviving victim with his penis, but merely used a finger, a
lesser
sentence is justified. In this regard, counsel submissions are
unpersuasive for the reasons that I alluded to above.
[12]
Besides, this question was laid to rest
in
Tshabalala v S; Ntuli v
S
[7]
wherein Mathopo AJ, held aptly:
"The
instrumentality argument has no place in our modern society founded
upon the Bill of Rights. It is obsolete and must be
discarded because
its foundation is embedded in
a
system of patriarchy where women are
treated as mere chattels. It ignores the fact that rape can be
committed by more than one person
for as long as the others have the
intention of exerting power and dominance over the women, just by
their presence in the room".
[8]
[13]
Regarding the murder charge, counsel was
of the view that the state had failed to prove a direct intention to
kill which therefore
justifies a lesser sentence than life
imprisonment. He urged this court to consider that accused 1 merely
wanted to threaten the
victims with the rifle for them to submit to
the robbery that ensued without any direct
intention
to kill. Furthermore, that
accused 1 was unlikely to reoffend since the murder weapon has
already been
returned to the lawful owners, in this case the SANDF.
In his view, an effective sentence of 22 years imprisonment would be
adequate.
[14]
Accused 2, Mathabatha is on his version 35 years old. He is a father
of minor twins with his unmarried
girlfriend that he helped to
maintain. He also helped to maintain two nephews aged 18 and 15 years
from his income at a mining
company where he worked for approximately
six months before his arrest. His minor children are in the
care and
custody of his girlfriend in
Soshanguve, Gauteng. Accused 2 passed grade 7. Both his parents have
since passed
on. He has been in custody ever since his arrest for
these charges, a period of over three years. He has no records of
previous
convictions. He maintained his innocence regarding the
commission of the offences.
[15] For
his part, counsel for accused 2, Mr Mokoena also urged this court to
find substantial and compelling
reasons justifying a departure from
the mandatory minimum sentences. He was of the view that an effective
sentence of 20 years
would be adequate under the circumstances.
[16] In
closing submissions, the state called for the mandatory minimum
sentence of life imprisonment for
each accused in respect of the
murder and rape charges and 15 years imprisonment in respect of the
aggravated robbery charges as
well as 25 years' imprisonment in
respect of possession of a fully automatic firearm. However, that
said, this court
is obliged of its own
accord, to consider all the various aspects in relation to each
accused.
[17]
In
S v
Malgas
[9]
it is set out how a court is to
approach the minimum sentence regime and in particular, how the
enquiry into "substantial and
compelling circumstances" is
to be conducted. The following passage
is of particular
relevance:
"The specified sentences
were not to be departed from lightly and for flimsy reasons which
could not withstand scrutiny. Speculative
hypotheses favourable to
the offender, maudlin sympathy, aversion to imprisoning first
offenders, personal doubts
as
to the efficacy
of the policy implicit in the amending legislation, and like
considerations were equally obviously not intended
to qualify
as
substantial and
compelling circumstances."
[10]
[18]
Nugent JA stated in
S
v Vilakazi
[11]
that:
" 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 Ma/gas 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".
[12]
[19]
The deceased in this case was murdered
in a callous and horrific manner, in circumstances where he stopped
his motor vehicle on
the side of the road to urinate. This was a
mistake with fatal consequences. He was oblivious to the eminent
danger that lurked
in the immediate vicinity. He and his girlfriend,
the surviving victim were stripped naked and marched into the nearby
bushes.
The result was horrific for anyone to endure. Not only
was he tortured and assaulted for the pin to his bankcard, all
valuables
in his motor vehicle and other personal
belongings of both victims were stolen. That did not save him. He was
shot
with a fully automaitc rifle and succumbed to his injuries
shortly thereafter. His death was downright, unnecessary.
[20]
The deceased had no chance to flee or
defend himself or for that matter, his girlfriend. They had
been found in a compromising
situation. The deceased died a
cruel, horrific and lonely death, whilst naked in the bushes during
the night. The deceased
and his girlfriend where attacked viciously
like preys by a pack of dangerous predators. The surviving victim was
not spared. She
was assaulted; insulted by being
called slanderous names and was
sexually
abused. To top it all, she
had to witness her boyfriend fighting
for
his last breath. She was forced to try and carry him,
but to no avail as he laid dying which traumatized her to this day.
As if that was not all, she was forced to make 'a run of shame'
whilst naked, which she did for fear of her life. She had no choice,
but to present herself in that belittling state to members of the
public where she sought help.
[21]
The rape itself was no less humiliating
as it was a painful exercise. She was forced to lie on the ground
naked in the bush, covered
with thorns during the rape ordeal. One of
the thorns, from part of the
acacia
specie,
was deeply embedded in her
right buttock and was removed only in hospital, where she underwent
gynaecological examination. The entire
experience scarred her for
life. Her rights to equality, human dignity and bodily integrity were
violated beyond measure.
[22]
It has been approximately 23 years since
Mohammed CJ uttered his famous statement in
S
v Chapman
[13]
):
"Rape is a very serious offence, constituting as it does a
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim. The rights to dignity, to
privacy, and the integrity of every person are basic to the ethos
of
the Constitution and to any defensible civilisation. Women in this
country are entitled to the protection of these rights. They
have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and come from
work, and to
enjoy the peace and tranquillity of their homes without the fear, the
apprehension and the insecurity which constantly
diminishes the
quality and enjoyment of their lives."
Yet,
the scourge has not been abated, but is in the increase, which is a
source of serious concern for the entire administration
of justice.
[23]
In this case, the surviving victim
turned to alcohol and drugs to overcome the psychological pain of the
rape and the loss of the
deceased at the hands of the accused. Both
accused left home for "work" that night armed to the teeth.
Accused 1 was
armed with a fully automaitc assault weapon designed
not only to kill in a war situation, but to cause maximum impact. It
is evident
from the post-mortem examination report. The entrance
bullet wound, which was 5 x 5 mm went through the right upper front
thigh,
through the right lower abdomen and thereafter through the
mesenteric tissues and exited the left side of the lower abdomen.
Accused
2 was armed with a slasher. It suggests to me that they had
wicked reasons for doing so.
[24]
Both accused are a danger to society.
They showed no remorse; neither did
they
express any, for
their despicable
conduct. The incident of the crime of the robberies at least, was
evidently planned. The deceased was murdered
in the course of a
robbery incident to prevent him from putting up resistance or quite
possibly to stop him from identifying them
in the future as one of
them called the deceased by his names during the incident.
[25] The
death of the deceased was unnecessary and inhumane particularly in a
country such as ours, which
is encumbered by violent and serious
crimes. The deceased too, had a right to life as enshrined in section
11 of our Constitution
that was sadly, brutally taken away from him.
The deceased is not just a mere statistic in our criminal justice
records. The deceased
left behind a still grieving family that
consists of his ailing mother and siblings, as well as a minor child
who is likely to
grow up without a father figure.
[26]
When his brother testified in
aggravation his death the pain was tangible. The brother was already
on chronic medication. The death
of the deceased
affected him dearly in that he was prescribed a double dose of
medication to cope. The death did not
affect the elderly mother
differently, since the deceased lived with her. The
elderly mother also depended on
the deceased for support.
As Mathopo AJ recently stated in connection with rape offences:
"the high incidence of sexual
violence suggests that male control over women and notions of sexual
entitlement feature strongly
in the social construction of
masculinity in South Africa.
Some
men view sexual violence as
a
method of reasserting masculinity and
controlling women".
[14]
[27]
Accordingly, I find that the accused's
ages, clean records, the period of internment pending trial, their
respective social backgrounds
and minimal educational achievements do
neither, singularly, nor cumulatively constitute substantial or
compelling circumstances
that render the minimum sentences unjust
for each accused. These are the
'flimsy' reasons
that Marais JA in
Malgas warns us against. It is therefore imperative for the courts to
remain steadfast
by consistently sending out a clear message that
crimes such as these shall not be tolerated but be met with attendant
severe punishments
in justifiable circumstances. This is such a case.
The permanent removal of the accused from society is judicious. In
the result,
each of the accused is sentenced as follows:
27.1
On count 1 (murder): life imprisonment;
27.2
On count 2 and 3 (robbery with
aggravating circumstances: )15 years imprisonment in respect of each
count; and
27.3
On count 4, accused 1 only (Possession
of a prohibited firearm): 25 years imprisonment.
27.4
On count 5, accused number 1 only
(possession of ammunition): 5 years imprisonment.
27.5
On count 6 (rape): life imprisonment.
The sentences imposed in respect
of counts 2 and 3 as well as counts 4 and 5 respectively (the latter
sentences are in respect of
accused 1) are to run concurrently with
the sentence imposed in count 1 (life imprisonment).
Effectively therefore, each
accused is sentenced to two life terms of imprisonment. In terms of
section 103 of Act 60 of 2000, both
accused are unfit to possess
arms.
T
P MUDAU
Judge of the High Court
APPEARANCES
For
the State:
Adv Jacobs
Instructed
by:
DPP -Limpopo Division
For
Accused 1:
Adv Nonyane
For
Accused 2:
Adv Mokwena
Instructed
by:
Legal Aid
[1]
S v Zinn
1969 (2) SA 537 (A)
[2]
1945 AD 444
at 455
[3]
See also
S v Whitehead
1970 (4) SA 424
(A)
at 436E-F;
S v Rabie
1975 (4) SA 855
(A) at 862
[4]
1961 (1) SA 231 (A)
[5]
At 236A-B
[6]
Rabie
(fn 3 above)
[7]
2020 (3) BCLR 307 (CC)
[8]
At para 54
[9]
2001 (1) SACR 469 (SCA)
[10]
At para 9
[11]
2009 (1) SACR 552 (SCA)
[12]
At para 58
[13]
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at paras 3-4
[14]
Tshabalala v S
(fn 7 above)