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[2017] ZASCA 83
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Director of Public Prosecutions, Gauteng Divsion, Pretoria v Tsotetsi (170/2017) [2017] ZASCA 83; 2017 (2) SACR 233 (SCA) (2 June 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 170/2017
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
GAUTENG
DIVISION,
PRETORIA
APPELLANT
and
PORTIA
THULISILE
TSOTETSI
RESPONDENT
Neutral
citation:
The
Director of Public Prosecutions: Gauteng Division, Pretoria
v
Portia
Thulisile Tsotetsi
(170/2017)
[2017] ZASCA 083
(02 June 2017)
Bench:
Leach, Saldulker,
Zondi and Mathopo JJA and Coppin AJA
Heard:
4 May 2017
Delivered:
02 June 2017
Summary:
Sentence:
premeditated murder: prescribed minimum sentence: in terms of the
Criminal Law Amendment Act, 105 of 1997
: what constitutes substantial
and compelling circumstances: effect of failing to take into account
certain aggravating factors:
prescribed sentence not to be lightly
deviated from: to be imposed if it is not disproportionate to the
crime, the criminal and
the needs of society.
ORDER
On
appeal from
:
Gauteng Division, Pretoria, of the
High Court, (Makgoka J sitting as court of first instance):
1
The appeal is upheld;
2
The sentences imposed by the trial court are set aside and replaced
with the following:
a)
On count 1 (murder) accused no 1 is sentenced to life imprisonment;
b)
On count 2 (murder) accused no 1 is sentenced to life imprisonment;
c)
The sentences of life imprisonment are to run concurrently.
d)
Under
s 282
of the
Criminal Procedure Act, 51 of 1977
, the above
sentences
are antedated to 1 February 2016.
JUDGMENT
Coppin
AJA (Leach, Saldulker, Zondi and Mathopo JJA concurring):
[1]
This is an appeal brought by the Director of Public Prosecutions
(DPP) in terms of
s 316B
of the
Criminal Procedure Act
[1
]
against the sentences imposed on the respondent by the Gauteng
Division, Pretoria, of the High Court (the trial court), in respect
of two counts of murder on 1 February 2016. Leave to appeal to this
court was granted on petition. The only issue on appeal is
whether
the trial court erred in finding that there were substantial and
compelling factors in respect of both counts, justifying
a lesser
sentence than the prescribed minimum sentence of life imprisonment.
[2]
The respondent, who was accused no 1 in the trial court, was
convicted of murdering her husband, Mr Nzimeni Bednock Sithatu
(Mr
Sithatu), a school teacher, on 21 February 2012 (count 1). She was
also convicted (together with a co-accused) of murdering
Mr Dumisani
David Ngubeni (Mr Ngubeni) on 16 May
2012 (count 2). Mr Ngubeni was implicated in the
murder of Mr
Sithatu.
[3]
The minimum sentence of life imprisonment applied to both counts
[2]
,
but the trial court found that there were substantial and compelling
circumstances justifying the imposition of a lesser sentence
in
respect of the two counts. The trial court, consequently, imposed a
sentence of 20 years' imprisonment on the respondent in
respect of
each count and ordered the sentences to run concurrently.
Resultantly, the respondent was sentenced to an effective
term of 20
years’ imprisonment for both the murders. In contrast, the
respondent’s co-accused, who was only convicted
in respect of
count 2, was sentenced to life imprisonment.
The
trial of a third accused, Mr Nhlapo Motsamai Mahlasela (Mr
Motsamai), who had also been implicated in both murders,
was
separated from that of the respondent and her co-accused, after he
was diagnosed with schizophrenia.
[4]
The DPP contends, in essence, that the trial court had misdirected
itself in a number of respects in concluding that there were
substantial and compelling circumstances which justified the
imposition on the respondent of lesser sentences than the prescribed
minimum sentence. Counsel for the respondent, on the other hand,
argued in support of the correctness of the trial court's findings
in
respect of the substantial and compelling circumstances and submitted
that the sentences imposed were ‘just and fair’.
I shall
revert to these arguments.
[5]
An outline of the facts is necessary as background. It was
established at the trial that the respondent had approached various
individuals with a request that they undertake the task of killing Mr
Sithatu and essentially told them that she wanted him killed
for
financial reasons. Before Mr Sithatu’s actual killing on 21
February 2012, the respondent had told one of them, Mr Sabelo
Hadebe
(Mr Hadebe) that she had not been successful in her effort to poison
Mr Sithatu with 'tiger's liver' or 'crocodile liver'.
She also made
promises to one of them, Mr Thabo Mokoena (Mr Mokoena) to obtain a
firearm to facilitate Mr Sithatu’s murder.
[6]
By 21 February 2012 the respondent had successfully enlisted the
assistance of three men for performance of the gruesome task,
Mr
Motsamai, Mr Ngubeni, (who is the deceased in count 2) and Mr Mbuso
Nicolas Mdluli, (Mr Mdluli), who testified against her at
the trial.
In the early evening of that day, with the co-operation of the
respondent and under the pretext that they were coming
to borrow
money from her, Mr Ngubeni and Mr Mdluli went to the matrimonial home
in Rooikoppen, Sakhile, Standerton, in order for
Mr Ngubeni to
identify their intended victim, Mr Sithatu. The plan was to
return later to kill him and make it seem as if
he had committed
suicide by hanging. Later that evening, when Mr Sithatu was asleep,
after the respondent had given him sleeping
tablets, and on her
prompting, the three men went back to the matrimonial home, where
they, together with the respondent, executed
their plan successfully.
The respondent was present throughout. Afterwards, the respondent
summoned neighbours to the scene, feigning
surprise and ignorance at
the circumstances of Mr Sithatu's death.
[7]
Mr Sithatu’s body was found hanging by the neck, from a rafter
in the bathroom of the house. The bed was without a sheet
or
covering, pillow cases had been stripped off and there were pension
or insurance documents on the bedside table. The cause of
Mr
Sithatu's death was found to be consistent with hanging.
[8]
Mr Ngubeni had left the scene with a plastic bag containing
incriminating evidence, inter alia, a blood spattered bed cover,
pillow case and the gloves that were used. This, it turned out, was
the precursor of his demise at the hands of the respondent,
her
co-accused and Mr Motsamai, when he used the bag's contents to
blackmail the respondent and attempted to extort more money
from her
for his role in Mr Sithatu's killing.
[9]
By 16 May 2012 the respondent, recently widowed, had moved into a
shack in the yard of her parental home in Sakhile. She lured
Mr
Ngubeni to her place with promises of payment and when he arrived,
she together with her co-accused and Mr Motsamai, killed
him inside
the shack, by brutally and repeatedly stabbing him in the neck. They
cleaned the scene and burned items of clothing
and a carpet behind
the shack. Mr Ngubeni’s body, which was wrapped in a blanket,
was then dumped on a bank of the Vaal river
in Sakhile.
[10]
Death threats made by the respondent to her neighbour, Mr Bongani
Nhlapo (Nhlapo), who witnessed the happenings at her home
on 16 May
2012, proved to be the undoing of the respondent and her surviving
cohorts.
[11]
Mr Nhlapo, out of fear for his life and prompted by a friend, went to
the police and made a statement. The arrest of the respondent
and her
cohorts followed. This also led to the discovery of Mr Ngubeni's
body. The cause of Mr Ngubeni's death was
found to be
'multiple incised wounds on the neck'. Expert evidence was led at the
trial to the effect that there would have been
a substantial loss of
blood as a result of the infliction of those injuries. Upon a visit
to the respondent's home, shortly after
the respondent's arrest, a
policeman found what he thought to be, a new carpet, on the floor of
the shack.
[12]
Despite the overwhelming evidence against her, the respondent
doggedly maintained that she was innocent of wrongdoing. She
tried to
give an impression of having been a doting wife, who cooked and cared
for her husband, attending to his needs, including
seeing to it that
he took his medication. She denied contracting persons to kill him,
dismissing it as fabrication. Of significance,
she testified that two
weeks before his death she discovered, after having had insight into
his personal file at a medical facility,
that he was taking
antiretroviral medication (ARV's) and was infected with the human
immunodeficiency virus (HIV) and that a week
before his death she
established that she had also been infected and was HIV positive. She
ascribed her infection to her husband,
but did not raise it as a
reason for killing him and maintained her innocence throughout.
[13]
The respondent, similarly unconvincingly, denied any involvement in
the murder of Mr Ngubeni. According to her, they had a
long standing
love relationship. She testified that on 16 May 2012 Mr Ngubeni had
been upset when he found that she had employed
two men to assist her
to move furniture and with settling in at her new home. She
testified that this was soon resolved and
that after Mr Ngubeni had
eaten a meal with her and the two men in the shack, he left. She
denied threatening Mr Nhlapo. Notwithstanding,
the evidence against
her was overwhelming and her conviction for both murders was
inevitable and clearly correct.
[14]
In respect of the sentence, the DPP called Mr Sithatu's brother who
testified about the hurt and loss caused by the slaying
of Mr
Sithatu, who had three brothers and two sisters. He was a teacher at
the local school and was 37 when he died. Earlier in
the trial Mr
Andrew Sipho Ngwenya, a local councillor and friend of Mr Sithatu,
testfied that Mr Sithatu’s death was a great
loss to him and he
described Mr Sithatu, in the context of his work as a teacher, as ‘a
gifted , brilliant person’.
Mr Sithatu was supporting a
daughter from his previous marriage and she was 2 years old at the
time of his death. Mr Sithatu’s
family relied on him and
besides resulting in a loss for his family, his death caused his
mother to become ill.
[15]
In the trial court, in respect of sentencing, counsel for the
respondent mentioned certain personal circumstances of the respondent
from the bar and the respondent also gave evidence. She stated that
she wanted 'to extend peace' to her late husband's family.
She
explained that by that she meant that she was asking forgiveness from
them for what happened. When questioned, she did not
admit killing
either her husband, or Mr Ngubeni, but her answer was: ‘Yes, I
am saying as I listened to the witnesses as
they were testifying it
appeared that I am involved there so my name is being mentioned
there. That is why I said that I must ask
for forgiveness’. In
response to a follow up question she stated: ‘I do not admit
that I killed them but I am sorry
about what happened. That is why I
am saying that I am asking for peace’.
[16]
The respondent is a first offender. At the time of the murders she
was 27 years old and at the time of sentencing she had reached
the
age of 30. She had completed matric and obtained a N5 qualification.
She had no children and when she was eighteen years old,
her mother
passed away and she and her younger brother were raised by her
grandmother who was unemployed. She became like a mother
to her
sibling. She did not experience parental love because her mother,
while alive, drank alcohol. When she was staying at her
grandmother's
place she was compelled to work to earn money to buy what was
required for school. She met Mr Sithatu in 2008 and
they subsequently
got married and lived together as husband and wife until his death in
2012. She sold clothing for a living and
earned R2 000 to R3 000 a
month. She had been in prison awaiting trial for about three years
and eight months. The respondent also
testified that she was a
Christian and a member of the Potter’s House Church.
[17]
The trial court held that the same circumstances that were
substantial and compelling in respect of count 1 also applied in
respect of count 2, because the murder of Mr Ngubeni was ‘a
snowball effect’ of the murder of Mr Sithatu. It held that
the
motive or reason for killing her husband was that he infected her
with HIV, even though this was not the evidence of the respondent
at
all. It held that there was no evidence that the motive was financial
and that it could reasonably be expected from the respondent
not to
have informed any of those whom she had approached to kill her
husband, of her real motive. The trial court also seemed
to have had
doubts about whether the respondent had shown remorse, despite the
respondent’s dogged denial of any wrongdoing.
The trial court
was of the view, that ‘. . . remorse is a process, and not an
event that can be measured by a single act,
during the trial’
and that ‘[f]or some it might take a while for reflection . . .
’. Referring to
S
v Nkomo
,
[3]
the trial court concluded that for that reason it had to be very slow
to conclude that a lack of remorse was an indication of a
lack of
prospects of rehabilitation. The respondent’s personal
circumstances, her intelligence and manipulativeness seemed
to have
impressed the trial court as qualities which would ‘doubtlessly’
have resulted in the respondent playing ‘a
positive role in
society’ if she was given an opportunity.
[18]
The trial court held that all the circumstances, including her
personal circumstances, clean record and her HIV status, as
well as
the time she had spent in prison awaiting trial, justified a lesser
sentence than the prescribed minimum sentence in respect
of both
counts of murder. The trial court then imposed the sentences, which
served concurrently amounted to a total of 20 years’
imprisonment, and which, according to the DPP do ‘not instil
confidence in the criminal justice system.’
[19]
The DPP's counsel correctly submitted that the trial court did not
give sufficient consideration to weighty aggravating circumstances,
such as the planning of the killings and the respondent’s
personal involvement in them.
[20]
The submission by the counsel for the respondent that those
aggravating circumstances were ‘neutralised’ by the
cumulative mitigating factors, has no merit and is based on a
misconception of the weight of the alleged mitigating factors. The
respondent planned the killing of her husband long before the fateful
day of his death. As early as November or December 2011 the
respondent asked individuals to kill her husband for payment. She had
tried killing him by poisoning and through the use of a firearm.
The
actual killing was executed according to a plan and with her active
participation.
[21]
The killing of Mr Ngubeni was also planned. She enticed him to her
home with promises of payment. The deed was probably executed
there
and the incriminating evidence was destroyed. She was probably
present when he was killed inside her shack and apparently
did not
shrink from cleaning the bloodied scene after the murder.
[22]
Further, counsel for the DPP correctly submitted that the trial court
also erred in finding that the respondent’s motive
for killing
her husband was because he had infected her with HIV. This was never
the respondent’s version. To the end she
denied ever killing
him. She portrayed herself as a caring wife. Besides the fact that
the trial court was not at large to speculate
about motive, the
respondent, on her version, only discovered her husband’s HIV
status about two weeks before the killing
and her own HIV status
approximately a week before that. But she had already evinced the
intention to kill her husband as early
as November or December 2011
and had taken active steps from then to achieve that objective.
[23]
According to at least three of the individuals whom she had
approached to kill her husband, she had given financial or monetary
reasons for wanting to do so. She told Mr Mokoena that her husband
had refused to exclude his mother and daughter as beneficiaries
from
his insurance. To a Mr Hadebe she said that she did not love her
husband and only wanted his money and that she would get
the money if
he died because he had made ‘her the beneficiary in all
things’. To Mr Mdluli, she had said that, unless
her husband
was killed, she would lose everything as he was in the process of
leaving her. The contention by the respondent’s
counsel that
these were ‘mutually destructive’ versions is erroneous.
These were not different versions of the same
event. In any event,
their essence is not different. The benevolent interpretation the
trial court gave these intimations, namely,
that it was reasonable
for her not to tell them of the true reason why she wanted him
killed, was a misdirection, particularly,
because as pointed out
earlier, on her own version, she would not have known of her HIV
status when she spoke to Messrs Mokoena
and Hadebe in about November
or December 2011. The trial court thus also erred in finding that
there was no evidence that the respondent’s
motive for killing
her husband was financial.
[24]
On behalf of the State Ms Thandi Priscilla Mosia testified that Mr
Sithatu had obtained a protection order from the magistrate’s
court in Standerton in February 2012
[4]
.
The order interdicted the respondent from removing any property from
their matrimonial home and sought to prevent the respondent
from
committing any act of domestic violence or getting the help of any
person to commit any act of domestic violence. Mr Sithatu
gave
details of the domestic violence in his application, which was
admitted in evidence as an exhibit, stating that he found the
respondent in their matrimonial bed with another man; that they
discussed the incident and that she apologised and he forgave her.
After two days her family came to remove her from their home and on
each occasion when she returned to the house, she removed some
things
on the instruction of her family. His complaint, in essence, was that
they were married in community of property and that
she was
wrongfully depleting their joint estate. This application shows that
it was not Mr Sithatu’s intention to leave her,
because he
states in the application that ‘[i]f ever she is intending for
divorce she must follow the correct procedure through
court’.
It is also supportive of the conclusion that her motive for his
murder was financial greed.
[25]
As submitted by the appellant’s counsel, the trial court also
erred in giving insufficient weight to the respondent’s
lack of
remorse. Even though there is a possibility that a convicted person
who has not shown any remorse at the time of sentencing,
may do so in
the future, a sentencing court cannot speculate in that regard and,
in effect, downplay the seriousness of the absence
of remorse. At the
time of the sentencing, on 1 February 2015, more than three years had
passed since the murders and she still
did not appreciate and
acknowledge the wrong that she had done. On the contrary, despite the
overwhelming evidence against her,
the respondent persisted with her
denial of any involvement in the murders. She clearly exhibited no
insight into her wrong doing.
In
S
v Matyityi
[5]
it was stated
that:
‘
[r]emorse
is a gnawing pain of conscience for the plight of another. Thus
genuine
contrition can only come from an appreciation and acknowledgement of
the extent of one's error… In order for the
remorse to be a
valid consideration, the penitence must be sincere and the accused
must take the court fully into his or her confidence.’
[26]
It was also correctly submitted by counsel for the DPP that the trial
court erred in finding that because Mr Ngubeni’s
murder was ‘a
snowball effect’ of the murder of Mr Sithatu, the same
circumstances that justified the imposition of
a lesser sentence in
respect of count 1 also applied in respect of count 2. Certain of the
circumstances, or factors, taken into
account in respect of count 1
could not have been mitigating in respect of count 2. That Mr Sithatu
may have infected the respondent
with HIV could not possibly serve as
mitigation for the murder of Mr Ngubeni. In any event, the approach
adopted by the trial court
was wrong. It ought to have weighed the
circumstances against the facts of each of the counts separately, in
line with the determinative
test laid down in
S
v Malgas
,
[6]
(
Malgas
).
In order to determine whether the minimum prescribed sentence is
just, a sentencing court must consider whether in light of the
circumstances of the particular case the prescribed sentence is
disproportionate to the crime, the criminal and the needs of society.
[27]
As held in
Malgas
[7]
confirmed in
S
v Dodo
,
[8]
and explained in
S
v Vilakazi
,
[9]
even though ‘substantial and compelling’ factors need not
be exceptional they must be truly convincing reasons, or
‘weighty
justification’, for deviating from the prescribed sentence. The
minimum sentence is not to be deviated from
lightly and should
ordinarily be imposed.
[10]
[28]
Contract killing has always been regarded as a severely aggravating
circumstance and an abomination.
[11]
In
S v Ferreira & others
Marais JA, albeit
in a dissenting judgment, describes a pre-meditated and deliberate
desire to kill as ‘the most offensive
. . . known to the law. .
. ‘ and describes a contract killing for reward, as one which
‘in the eyes of most reasonable
people’ constitutes ‘an
abomination which is corrosive of the very foundations of justice and
its administration’.
[12]
It is therefore imperative for the courts to consistently send out a
clear message that such crimes shall be severely punished.
[29]
There is, in my view, also a disturbing disparity between the
sentence of the respondent, as the planner and co-executioner
of the
two murders, and the life sentence which was imposed on her
co-accused, who was only convicted of the murder of Mr Ngubeni.
The
general principle is that if justice is to be done and seen to be
done, where a number of people are convicted of the same
crime, there
ought to be reasonable uniformity in respect of the sentences imposed
on them, due regard being given to respective
mitigating and
aggravating circumstances.
[13]
The respondent’s role was a leading one and the sentence should
have reflected the seriousness of what she had done.
[30]
Compared to the nature and the seriousness of each of the two
murders, those factors that were put forward as justifying a
lesser
sentence than the minimum sentence for the respective counts of
murder - including the respondent’s age, clean record,
the
period of her incarceration awaiting trial, her background and her
educational achievements - do neither, singularly, nor cumulatively
constitute substantial or compelling circumstances that render the
minimum sentence of life imprisonment unjust. The trial court
therefore misdirected itself in concluding that there were
substantial and compelling circumstances present in this case.
[31]
The respondent’s background is not unique and could not have
been a justification for her callous deeds for which she
showed no
remorse. There are many persons with similar and more challenging
backgrounds who do not resort to crime and who live
as upright
citizens, respecting the law and the rights of their fellow human
beings. The murders were callous, premeditated and
motivated by
greed.
[32]
In light of all the circumstances, consisting of all factors relevant
to the nature and seriousness of the respective crimes
and relating
to the respondent which could have a bearing on the seriousness of
the offences and the respondent’s culpability
[14]
,
the minimum sentence of life imprisonment, in respect of both counts,
was not disproportionate and should have been imposed in
respect of
both murders. Those sentences are not unjust.
[15]
Indeed, life imprisonment, in light of all the circumstances, is the
only appropriate sentence on each count. As pointed out by
this court
in
S v
Mashava
,
[16]
by operation of law, these sentence are to run concurrently.
[33]
The appellant has been in custody since before her trial and it is in
the interest of justice that these sentences be antedated
to 1
February 2016 when sentence was imposed in the trial court.
[34]
In the result:
1
The appeal is upheld;
2
The sentences imposed by the trial court are set aside and replaced
with the following:
a)
On count 1 (murder) accused no 1 is sentenced to life imprisonment;
b)
On count 2 (murder) accused no 1 is sentenced to life imprisonment;
c)
The sentences of life imprisonment are to run concurrently.
d)
Under
s 282
of the
Criminal Procedure Act, 51 of 1977
, the above
sentences are antedated to 1 February 2016.
______________________
P
Coppin
Acting
Judge of Appeal
APPEARANCES:
For
the Appellant:
A Coetzee
Instructed
by: Director of Public Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
For
the Respondent:
J M Mojuto
Instructed by: Legal Aid
South Africa, Pretoria
Legal Aid South Africa,
Bloemfontein
[1]
Criminal
Procedure Act 51 of 1977
.
[2]
As
contemplated in
s 51
,
Part 1
of Schedule 2 of the
Criminal Law
Amendment Act, 105 of 1997
.
[3]
S
v Nkomo
2007
(2) SACR 198
(SCA) para 30.
[4]
The
protection order was obtained in terms of the
Domestic Violence Act
116 of 1998
.
[5]
In
S
v Matyityi
[2010] ZASCA 127
;
2011 (1) SACR 40
(SCA) para 13.
[6]
S
v Malgas
2001
(1) SACR 469
(SCA) paras 22 and 25.
[7]
S
v Malgas
para
25.
[8]
S
v Dodo
[2001] ZACC 16
;
2001
(3) SA 382
(CC);
2001 (5) BCLR 423
(CC) para 11.
[9]
S
v Vilakazi
[2008]
ZASCA 87
;
2009 (1) SACR 552
(SCA) para16.
[10]
S
v Malgas
para
25.
[11]
See
S
v Mlumbi en ‘n ander
1991
(1) SACR 235
(A) at 251G-I;
S
v Ntshangase
1992 (2) SACR 141
(A) at 145A-C;
S
v Ferreira & others
2004
(2) SACR 454
(SCA) para 33.
[12]
S
v Ferreira & others
above
para 65.
[13]
S
v Dombeni
1991
(2) SACR 241
(A) at 245c-d.
[14]
S
v Malgas
above
para 25.
[15]
Director
of Public Prosecutions, KwaZulu-Natal v Ngcobo & others
[2009]
ZASCA 72; 2009 (2) SACR 361 (SCA) para 22.
[16]
S
v Mashava
[2013] ZASCA 200
;
2014 (1) SACR 541
(SCA).