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2020
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[2020] ZALMPPHC 69
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S v Mogale and Others (CC76/2018; 10/2/11/1-L41/18) [2020] ZALMPPHC 69 (6 July 2020)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
: YES / NO
CASE
NO: HGC: CC76/2018
DPP
REF NO: 10/2/11/1-L41/18
6/7/2020
In
the matter between:
THE
STATE
And
MOGALE,
CHARLES
ACCUSED 1
NTHUTANG, SEHLABE
LOUIS
ACCUSED 2
APHANE, BOITUMELO
DANIEL
ACCUSED
3
J
U D G M E N T ON SENTENCE
MUDAU
J:
[1]
The 3 accused appeared before this court charged jointly in an
indictment which contained
11 counts. They have all since been
convicted of conspiracy to commit robbery with aggravating
circumstances, in contravention
of section 18 of the Riotous
Assemblies Act 17 of 1956 (count 2); three counts of attempted murder
(counts 3-5); two counts of
murder read with the provisions of
section 51 (1) of Act 105 of 1997 (counts 6 and 7); and finally,
against accused 1 only, reckless
negligent driving in contravention
of section 63 read with other relevant provisions of the National
Road Traffic Act 93 of 1996
(count 11) as well as possession of
stolen property in contravention of section 36 of the General Law
Amendment Act 62 of 1955.
They were all acquitted of the remaining
charges.
[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 to
inter alia,
the
main purposes of punishment mentioned by Davis AJA in
R
v Swanepoel
[2]
,
namely deterrence, prevention,
reformation and retribution.
[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."
[4]
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 courts in
respect of a wide range
of serious and violent crimes that include
murder, rape and aggravated robbery cases. The accused were warned
upfront in this regard
at the start of the trial.
[5]
Accordingly, the accused face a minimum
sentence of life imprisonment in respect of counts 6 and 7 (the
murder charges), unless
I find there are substantial and compelling
circumstances justifying a departure from the prescribed minimum
sentences. The accused
face mandatory life terms of imprisonment in
respect of counts 6 and 7 because the offences were committed by the
accused acting
in the execution or furtherance of a common purpose or
conspiracy.
[6]
Accused 1's legal representative
addressed this court from the bar in mitigation of sentence. Accused
1, Mogale is 51 years of age.
He was approximately 48 years of age
when the crimes were committed. His highest educational achievement
is matric. He is currently
in his second marriage. From his first
marriage, he fathered three children aged 33, 26 and 23 years
respectively with his now
deceased wife. Of these three children, the
youngest is studying at a tertiary institution. From his second
marriage, he fathered
two minor children, a boy and a girl aged one
month and 10 years respectively. The mother of the two minor children
is gainfully
employed. He is self-employed and makes aluminium doors
and windows as well as related products for a living from which he
derived
approximately R15000-00 before the COVID-19 pandemic
lockdown. With the current lockdown restrictions , he makes
approximately
R5000-00 a month.
[7]
Mogale has a colourful record of
previous convictions dating back to an era when he was obviously a
young man. Some of them are
evidently outdated for purposes of
sentence. However, for the record they are as follows. On 8 December
1987, he was convicted
of theft by the Polokwane magistrate's court.
The passing of sentence was in that instance postponed for a period
of five years
subject to customary conditions. On 19 May 1992, he was
convicted by the Potgietersrus (now Mokopane) magistrate's court for
theft.
He was sentenced to receive five lashes with a light cane in
terms of the now repealed
section 294
(1) A of the Criminal Procedure
Act 51 of 1977 ("CPA"). In addition, he was sentenced to
undergo six months imprisonment
suspended for a period of four years
on customary conditions. That did not deter him. On 9 June 1992 at
the Mokopane magistrate's
court, he was convicted on another theft
charge and as a result sentenced to undergo 12 months imprisonment.
[8]
On 3 July 2008 at the Alberton
magistrate's court, he was convicted for contravening section 120 (8)
(b) (ii) of Act 60 of 2000,
loss of a firearm in respect of which he
was fined R1000-00, alternatively, ordered to serve three months
imprisonment. However,
the only relevant other previous conviction is
by the Mokerong magistrate's court in Mahwelereng on 17 September
2015 where he
was convicted of possession of presumably stolen
property. A sentence of six years imprisonment wholly suspended for a
period of
five years on condition he is not convicted of unlawful
possession of a suspected stolen motor vehicle during the period of
suspension
was imposed. I was urged to find substantial and
compelling circumstances justifying a departure from the mandatory
minimum sentences
particularly with regard to the murder charges by
Ms Alberts during her address regarding mitigation of sentence, from
the above
overall facts. Accused 1 drove his motor vehicle at high
speed in wilful or wanton disregard for the safety of persons;
disregarding
traffic signs; and in this instance red traffic lights;
under circumstances where traffic was heavy, by his own admission. He
also
refused to stop when ordered to do so, quite clearly, by the
police.
[9]
Accused 2, Nthutang, is 41 years old. He
testified in mitigation of sentence. In his testimony, he maintained
that he was innocent
of any wrongdoing regarding the charges in spite
of this court's findings to the contrary. Accused 2 is a father of
five children,
an adult son, aged 23, as well as four minor children,
two boys and two girls aged 12, 10, 4 and 2 years respectively, by
two different
mothers. Both women are gainfully employed. The older
three children attend school. He is unmarried. The highest education
level
he reached is matric. He has been in custody ever since his
re-arrest for these charges, a period of approximately 13 months. He
is self-employed and transports schoolchildren from which he derives
approximately R13000-00 to R15000-00 a month. He has records
of
previous convictions. He maintained his innocence regarding the
commission of the offences. That he innocently got a lift to
Gauteng
from a group of men in a motor vehicle under circumstances where the
conspiracy and the mission by a group of armed men
was quite clearly
to rob, was a version that I dismissed as highly improbably and
nonsensical.
[10]
Accused 2 has a highly decorated record of previous convictions,
which he admitted. On 6 December 2000
he was convicted by the
Johannesburg magistrate 's court for a contravention of section 39
(1) (i) of Act 75 of 1969 for pointing
a firearm at another person.
He was sentenced to undergo one-year direct imprisonment. On the same
date, he was convicted for possession
of a firearm without a license
as well as ammunition. For both convictions taken together for
purposes of sentence, he received
three years imprisonment. On the
same date as above, he was also convicted on another charge of
pointing of a firearm at another
person. He was declared unfit to
possess a firearm. On 15 June 2004, the Wynberg regional court
convicted him for robbery committed
in Sandton in respect of which he
was sentenced to seven years imprisonment.
[11] On 12
January 2011, the Newlands Regional Court, Johannesburg, convicted
him on housebreaking with
intent to rob and robbery in respect of
which he received 20 years imprisonment. There he appeared under the
names Nthutang (Lerato
Louis Sehlabi). On the same day, and before
the same court, he was convicted of four counts for possession of
firearms in contravention
of the relevant provisions of Act 60 of
2000 (the Firearms Control Act) in respect of which two years
imprisonment was imposed
for each count were ordered to run
concurrently with the 20 years prison sentence. On the same day and
by the same court he was
also convicted of four counts of attempted
murder. All the charges of attempted murder were taken together for
purposes of sentence
for which he received five years imprisonment
ordered to run concurrently with the 20 years imprisonment referred
to above. In
terms of section 103 of Act 60 of 2000, he was declared
unfit to possess a firearm. However, in his evidence, he testified
that
the latest conviction and sentences were in 2015 on appeal set
aside. The state did not challenge his evidence.
[12] For
her part, counsel for accused 2, Ms Mohlaka also urged this court to
find substantial and compelling
reasons justifying a departure from
the mandatory minimum sentences. She was of the view that a sentence
of 15 years imprisonment
would be adequate for each murder charge as
the victims and the co-perpetrators were shot dead by the police.
[13]
Counsel for accused 3 addressed this court from the bar. Accused 3,
Aphani, is 33 years of age. He
was approximately 30 years old at the
commission of the offences. He has been in custody ever since his
arrest, 1 April 2017, which
is a period of a little over three years.
He is not married but is a father to three minor children aged, 10,
10 and 4 years respectively
by three different mothers. The children
are in the care and custody of their respective mothers. Before his
arrest, he was unemployed.
He passed matric and in addition acquired
certificates in business management as well as in nature
conservation.
[14]
Accused 3 also admitted to a record of a previous conviction. On 13
February 2014, at Mokopane magistrate
's court, he was convicted of
attempted robbery. Consequently, he was sentenced to three years
imprisonment of which one year thereof
was suspended for a period of
five years on customary conditions. Counsel for accused 3, Ms Makweya
also added her voice to the
chorus of submissions made to the effect
that, essentially, this court must find substantial and compelling
circumstances in favour
of accused 3 in that he was, for his role in
the commission of the offences, under peer pressure from the
deceased, Solly and also
for the taste of the finer things in life.
[15]
The offences committed are viewed by
this court in a very serious light. All of them, without exception,
are not petty offences
as counsel conceded. The conspiracy charge
involves an element of planning. It is evident that none of the
accused have learned
much from their respective previous brushes with
the law. I am mindful of course that in the case of accused 1, the
offences were
committed when he was a youth and for the majority, not
to be considered for purposes of sentence. It of concern to this
court
however, that not so long ago he was convicted and sentenced
for possession of a stolen motor vehicle in respect of which, he
received
a paltry wholly suspended sentence. In addition, his role,
which led to ultimate incidents of the capital crimes, cannot be
ignored.
Had he not driven away from the scene to facilitate an
escape, it is doubtful whether there would have been any shooting
with fatal
consequences.
[16]
In addition, accused 1 expressed no
regret for the commission of the offences nor for the role, he
played. Accused 2 is also unremorseful
in light of convictions for
the crimes charged, given his improbable version in this trial. He
maintained that in essence, as he
got a lift, he was at the wrong
place and at the wrong time. As I indicated in the main judgment, the
occupants of the Ford Ranger
were clearly on an unlawful mission and
armed to the teeth with firearms that included an RS automated
assault rifle in respect
of which the serial numbers were removed. As
I indicated in the main judgment in dismissing accused 2's version,
it is inherently
improbable that the others would have given him a
lift under circumstances where, as I found, the conspiracy was to
commit armed
robbery as belatedly and essentially confirmed by an
address from counsel on behalf of accused 3.
[17]
Turning to accused 3, his belated
expression of remorse is nothing more than, as the proverbial saying
goes 'crocodile tears'. More
than anything, he is evidently feeling
sorry for himself. He tried to extract himself from a confession made
a day after the incidents
of crimes, which I admitted in evidence
despite his protestations to the contrary. Neither did he testify in
support of the suggestion
that he is genuinely remorseful for his
part in the commission of the offences. Crimes that involve the loss
of life are considered
in a very serious light, as everyone has a
right to life as enshrined in the Bill of Rights of our Constitution.
The loss of lives
of the two deceased, although involved in hazardous
activities in respect of which death can be anticipated, could have
been avoided.
They as well, were parents of children who deserve to
have their fathers around them, but for these crimes.
[18]
In closing submissions however, the
state in essence conceded that this court might deviate from the
mandatory minimum sentences.
The state called for effective sentences
of 56 years, 55 years and 45 years respectively (in order of
appearance of the accused).
In the oft stated case of S
v
Malgas
[5]
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."
[6]
[19]
In S
v
Vilakazi
[7]
Nugent JA stated:
"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'.
[8]
[20]
Accordingly, I find
that regard being had to the overall relevant circumstances in
respect of each accused as detailed above; and
in particular the
circumstances under which the murder charges attributed to the three
accused for reasons outlined in the main
judgment were committed;
constitute substantial or compelling circumstances that render the
minimum sentences of life imprisonment
unjust, in respect of each
accused. With that said, it is 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 accused's removal from society for a considerable period is
warranted. The sentences suggested
by the state in my view remain
unduly harsh. In the result, each of the accused is sentenced as
follows:
20.1
On count 1 (Possession of stolen
property in contravention of s 36 of the General Law Amendment Act 62
of 1955 (accused 1 only)):
twelve (12) years imprisonment of which
ten (10) years is to run concurrently with the sentence imposed in
respect of count 6,
the murder charge.
20.2
On count 2 (conspiracy to rob in
contravention of section 18 (2) (a) Act 17 of 1956: 15 years
imprisonment.
20.3
On counts 3, 4 and 5 (attempted murder
charges taken as one for purpose of sentence): five years
imprisonment.
20.4
On count 6 (Murder): 25 years
imprisonment.
20.5
On count 7 (Murder): 25 years
imprisonment.
20.6
On count 11 (reckless driving in
contravention of section
63 (1) Act 93
of 1996 (accused one only):
five years imprisonment. The accused's driver's licence is suspended
for 24 months from the date hereof
in terms of section 35 (1) (b) (i)
of the Road Traffic Act, 1996.
20.7
In terms of section 280 (2) of the CPA
it is ordered that the sentences in respect of each accused run
concurrently with the sentence
imposed on count six (the murder
charge). The effective sentence for accused 1 is therefore 27 years
imprisonment and 25 years
respectively in respect of accused 2 and 3.
20.7 In terms of
section 280 (2) of the CPA it is ordered that the sentences in
respect of each accused run concurrently
with the sentence imposed on
count six (the murder charge). The effective sentence for accused 1
is therefore 27 years imprisonment
and 25 years respectively in
respect of accused 2 and 3.
Finally, all the accused are
declared unfit to possess firearms as intended in
section 103
of the
Firearms Control Act 60 of 2000
.
T
P MUDAU
[Judge of the High Court]
[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) at 236 A-B
[5]
2001 (1) SACR 469 (SCA)
[6]
At para [9]
[7]
2009 (1) SACR 552 (SCA)
[8]
At para [58]