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[2020] ZAGPPHC 11
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S v Mdletshe (CC49/2019) [2020] ZAGPPHC 11 (24 January 2020)
SAFLII
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO: CC49/2019
24/1/2020
In
the matter between
THE
STATE
and.
MXOLISI
MDLETSHE
Accused
JUDGMENT
ON SENTENCE
VAN
VEENENDAAL AJ
[1.]
The Accused has been convicted on one count of murder, one count of
kidnapping and one count
of rape, with the possible consequences of
section 51(1)
of the
Criminal Procedure Amendment Act 1997
being
applicable. His victim, T[….] F[…] Z[…], was 14
years old.
[2.]
The court now has the task to sentence the accused, taking Into
account the minimum sentences
applicable: the community's sense of
outrage and the personal circumstances of the Accused. This is not an
easy task .
The
nature of the offence :
[3.]
The court has to take into account the offences and the effect on the
family of the deceased.
The Deceased had been kidnapped, held in a
house close to her own home, raped and murdered.
[4.]
The murder and rape are heinous deeds, mercilessly committed not far
from the Deceased's home.
The Deceased was brutally raped and cut so
many times in the neck, that the doctor who performed the post mortem
could not determine
the number of cuts. The scene photographs reflect
the particular violence with which the Deceased was murdered.
[5.]
Rape is a violent offence and is an expression of the violent nature
of the perpetrator. Rape
is one of the most serious offences against
women. Rape is a humiliating, degrading, brutal invasion of the right
to dignity of
the person, which right is guaranteed in the
Constitution. The right to freedom is also guaranteed in the
Constitution. Women should
have the right to walk the streets in
safety, without having to look over their shoulders or expect an
attack at any moment, especially
when they are at home and should be
able to relax in the safety of their homes. The Accused has infringed
on these basic rights
of his victim. I can only refer to the
following dictum from
S v AM
2014 1 SACR 48
(FB) at par 16:
"[16] In this
case
the e1ppellant conducted himself
with total disregard for this young girl's right not to be abused and
to individual physical integrity".
[6.]
It is the duty of the courts to condemn this conduct as unacceptable
in any civilized society,
particularly in South Africa, where the
society ought to be committed to the protection of the rights of all
persons, including
women and children.
The
victim and the effect on her family:
[7.]
No parent should be made to bury a child, especially not when the
child's death was brought on
by an unprovoked attack on her. The
Deceased was a 14 year old girl. Her life was snuffed out before it
had time to blossom.
[8.]
She is described by her brother as a girl who was innocent, she loved
dancing, she was creative,
she loved writing stories, she was
talkative, she was full of ideas, she wanted to be a designer one
day.
[9.]
The Deceased had a close relationship with her mother. Her mother
described her as h ap p y,
ca re fr e e , not a stubborn teenager,
she was well-adjusted, she did well at school.
[10.] Another
brother is 28 years old, he is the father of two children. The manner
in which the Deceased died,
has an influence on how he will be
raising his own children.
[11.] The
Deceased was the adopted child of her mother, but had an open
relationship with her adoptive mother.
She also had an adopted sister
- to this sister, she was everything, not just a sister or just a
friend. They did everything together.
[12.] The
picture painted by the prosecutrix, is that the Deceased's family was
close knit and happy, with
an open-door policy to friends,
including the accused.
[13.] The
community broke down the Accused's house after the police
investigation was done. This illustrates the
disgust and anger at the
Accused because of this offence.
The
criminal:
[14.] The
Accused's personal circumstances were put before the court through
address from the Bar and a presentencing
report.
[15.] The
Accused lived alone in the house where the Deceased came to her sad
and violent death. He had two tenants
on the property. He is a first
offender and he is 24 years old.
[16.] The
Accused was viewed like a son in the Deceased's household, he was
friend to her brother. After the disappearance
of the Deceased, the
Accused held out to the community that he knew nothing of the
whereabouts or condition of the deceased. He
had discussions with the
Deceased's family as though nothing was amiss.
[17.]
Interestingly, the Accused puts before court that he is a very sick
man However, he does not play open cards
with the court regarding the
nature of his illness. He suffers from shortness of breath. He had
been hospitalised for seven months
in 2015 because of this ailment.
He qualified for, and receives, a disability grant because of this
shortness of breath. What the
shortness of breath is a symptom of, he
does not share with the court. What the longterm prognosis is, he
does not share with the
court.
[18.]
Medicinenet.com says that "Causes of shortness of breath include
asthma, bronchitis, pneumonia, pneumothorax,
anemia, lung cancer,
inhalation injury, pulmonary embolism, anxiety, COPD, high altitude
with lower oxygen levels, congestive heart
failure, arrhythmia,
allergic reaction, anaphylaxis,· subglottic stenosis,
interstitial lung disease, obesity, tuberculosis,
epiglottitis,
emphysema, pulmonary fibrosis, pulmonary artery hypertension,
pleurisy, croup, polymyositis, Guillain-Barre syndrome,
sarcoidosis,
rib fracture, carbon monoxide poisoning, and aerobic exercise."
Each of these may have different consequences
on longevity and
different ways of being treated, depending on whether the illness is
related to the heart, the chestwall, lung
tissue, obstructions to
airflow or other causes. The State did submit documentation in which
the Accused listed that he suffers
from asthma.
[19.] The State
submits that the Accused
is
tormenting the deceased’s
family even while at court. He told the court that he was involved
with an elder daughter and how
he waited for the deceased to grow up.
This was rejected in judgment on conviction.
[20.] The
Defence counsel submitted that the Accused had used crystal meth for
the first time the night before
the deceased disappeared. He also
submitted that the Accused had used alcohol and that it should be
mitigating circumstances.
[21.] The
Accused dropped out of school after grade 11 due to his ill-health.
He later attempted to attend a college
but dropped out due to lack of
funds. He became an assistant driver in Lenasia but left that job
after 4 months because the salary
was too small. At the time of the
commission of the offence the accused held a job in Booysens at a
Tavern.
[22.] It is also
submitted that he has an older and a younger sibling. He has been
incarcerated for less than
a year.
[23.] It is
submitted to court that all these circumstances together should
mitigate and constitute substantial
and compelling reasons to deviate
from the minimum sentence.
The interests of society
[24.] The
interests of society are reflected in the minimum sentencing regime.
The minimum sentencing legislation
provide for the gradation of first
offenders,
second
offenders and so on. Counsel for the State
calls for the minimum sentence to be applied, counsel for the defence
calls for mercy
and submits that the cumulative effect of the
mitigating circumstances should constitute substantial and compelling
circumstances.
[25.] As a
consequence of the Accused's conduct, the family members of the
deceased are all grappling with self-blame,
sleeplessness, children
who no longer perform well at school, trauma, nightmares. The larger
community demolished the house of
the Accused.
[26.] The issue
of remorse was also before court through argument. The State referred
to the fact that the Accused
displayed no regret or remorse. The
Accused's presentencing report referred to the issue of regret and
remorse, in the sense that
it pointed out the absence thereof.
[27.] Accused
can undergo programmes in prison. However, the success of following
programmes and continuing studies
in prison is dependent on the
personal commitment of each Accused. The court has no oversight role
in that regard.
Substantial and compelling
circumstances:
[28.] The court
has to apply the minimum sentences and should not depart from it for
flimsy reasons. The case
law is very clear on that. See S v Malgas
2001 (1) SACR 409
SCA Although there were Instances where there was
deviation from this principle, the Supreme Court of Appeal has never
deviated
from its warning that there should be truly convincing
reasons for deviating from the prescribed minimum sentence.
[29.] In S v
Malgas (supra) the court, at paragraph 22 says the following
regarding finding something that convinces
the court to deviate from
the prescribed minimum: "What that something more must be it is
not possible to express in precise,
accurate and all-embracing
language. The greater the sense of unease a court feels about the
imposition of a prescribed sentence,
the greater its anxiety will be
that it may be perpetrating an injustice. Once a court reaches the
point where unease has hardened
into a conviction that an injustice
will be done, that can only be because it is satisfied that the
circumstances of the particular
case render the prescribed sentence
unjust or, as some might prefer to put it, disproportionate to the
crime, the criminal and
the legitimate needs of society. If that is
the result of a consideration of the circumstances the court is
entitled to characterise
them as substantial and compelling and such
as to justify the imposition of a lesser sentence."
[30.] The court
has tried to find substantial and compelling circumstances to
individualize sentence for Accused,
balancing it against the
interests of the community and also trying to serve as deterrent
example to others who consider embarking
on a life of crime.
[31.] The
Accused is not a good candidate for rehabilitation. He fabricated his
version before conviction, and
at sentencing stage persisted in
fabricating a health situation without playing open cards with the
court, again.
[32.] I consider
that these circumstances together do not justify a finding of
substantial and compelling reasons
to deviate from the minimum
sentences. There is no sense of unease as described in
Ma/gas
(supra).
[33.] The court
wishes to instruct the Accused to follow the programmes offered in
the prisons for his personal
benefit, including the so-called
victim-offender programmes in order to realize the impact of his
conduct on the society.
[34.] The court
requests the family of the deceased to find and attend the so-called
victim-offender programmes
run by the Department of Correctional
Services, in order to make sense of the death of the deceased and to
have the questions and
anger they still have, answered. The
Deceased's family need to obtain the assistance of trauma counsellors
and psychologists for
debriefing and counselling and wishes to
request the State Prosecutor to assist as far as possible in this
regard.
[35.] I also
advise the family of the deceased to keep
in
contact with the
Department of Correctional Services in order to be contacted and to
give input when the Accused would be considered
for release.
[36.] The
sentences I impose for the Accused are as follows:
Count 1
Murder
life imprisonment
Count
2
Kidnapping 5 years
imprisonment
Count
3
Rape Life imprisonment
[37.] The
Accused is declared unfit to possess a firearm.
[38.] Name to be
entered on Register of Sexual Offenders.
C.
VAN VEENENDAAL AJ
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
OF HEARING: 28
OCTOBER 2019
DATE
OF JUDGMENT: 24 JANUARY 2020
APPEARNCES:
FOR
THE STATE:
ADV C.P HARMZEN
FOR.THE
DEFENCE: MR M.B KGAGARA