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[2019] ZAECMHC 59
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S v Letsoho (CC05/2017) [2019] ZAECMHC 59 (19 September 2019)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION: MTHATHA]
Case No. CC05/2017
In
the matter between:
THE
STATE
And
MOELETSI
LETSOHO
Accused
JUDGMENT
JOLWANA
J
[1]
The accused was charged with three counts being conspiracy to commit
the offence of robbery (count 1), robbery with aggravating
circumstances (count 2) and murder (count 3). He was acquitted
in respect of count 1 and was convicted in respect of counts
2 and
3. I am now required to pass an appropriate sentence for these
two offences.
Section 51
of the
Criminal Law Amendment Act 105
of 1997
, read with
Parts I
and II of Schedule 2 is applicable.
The prescribed minimum sentences are 15 years imprisonment in respect
of robbery and
life imprisonment in respect of murder.
[2]
In
S v
Malgas
[1]
the court explained the legal position regarding the prescribed
minimum sentences as follows:
“
[8]] First, a
court was not to be given a clean slate on which to inscribe whatever
sentence it thought fit. Instead, it was
required to approach
the question conscious of the fact that the legislature has ordained
life imprisonment as the sentence which
should ordinarily be imposed
for the commission of the listed crimes in the specified
circumstances. In short, the legislature
aimed at ensuring a
severe, standardised, and consistent response from the courts to the
commission of such crimes unless there
were, and could be seen to be,
truly convincing reasons for a different response. When
considering sentence the emphasis
was to be shifted to the objective
gravity of the type of crime and the public’s need for
effective sanctions against it.
But that did not mean that all
other considerations were to be ignored. The residual
discretion to pass the sentence which
the commission of such an
offence would ordinarily attract plainly was given to the courts in
recognition of the foreseeable injustices
which could result from
obliging them to pass the specified sentences come what may.”
[3]
The deceased who was employed as a taxi driver by Mr Dingalibala was
given the vehicle on the 9 June 2016 and he was to keep
it for the
night as he was due to take passengers on a special trip to Ugie.
However, he did not take the vehicle to his
homestead but was
somehow, it appears, lured into the homestead of the accused.
That night the deceased was bludgeoned to
death with a knob stick by
the accused at the home of the accused in a bedroom that had been
prepared for him to sleep in.
His body was later dumped in a
culvert at Coldstream farm in Maclear. His vehicle was driven
to Lesotho where it was sold.
[4]
The deceased was found some days later wearing an underwear only and
wrapped in a blanket. This, at the very least, suggests
that he
must have been sleeping when he was bludgeoned to death. Dr
Mjamba who conducted the post-mortem examination testified
that the
deceased had been assaulted and sustained multiple scalp lacerations,
depressed skull fractures on his forehead and at
the back of his
head. This resulted in brain tissue injury and intracranial
bleeding all of which led to his death.
[5]
It is worth noting that the deceased had no injuries on his arms at
all. This is also consistent with the deceased having
been
possibly assaulted in his sleep. Blood was only found by the
police in the bedroom in which the assault took place and
nowhere
else in that house. Warrant officer Mongezi Nxesi who worked at
Maluti Criminal Record Centre and had been called
to that crime scene
testified that in one of the bedrooms in that house he found blood
stains on the wall, the heard board and
a pool of blood in the red
blanket which he found between the matress and the base of the bed.
When he turned over the matress
he found blood on it as well.
The DNA results confirmed that the blood in that room was that of the
deceased.
[6]
These graphic details are themselves a testimony to the brutality
with which the deceased was killed. This is indeed a
heinous
crime committed with extreme brutality upon the deceased who
evidently did not or could not defend himself. It was
committed
for the sole purpose of robbing the deceased of the vehicle in his
possession and ensuring that the accused would not
be held
accountable for his crimes.
[7]
Section 51(3)
(a) of the
Criminal Law Amendment Act 105 of 1997
provides thus:
“
If any court
referred to in subsections (1) and (2) is satisfied that substantial
and compelling circumstances exist which justify
the imposition of a
lesser sentence than the sentence prescribed in those subsections, it
shall enter those circumstances on the
record of the proceedings and
must thereupon impose such lesser sentence: Provided that if a
regional court imposes such a lesser
sentence in respect of an
offence referred to in
Part 1
of Schedule 2, it shall have
jurisdiction to impose a term of imprisonment for a period not
exceeding 30 years.”
[8]
As already mentioned hereinbefore,
section 51(1)
and (2) of the
Criminal Law Amendment Act decrees
that minimum sentences of life
imprisonment and 15 years imprisonment respectively are applicable in
this matter. The question
to which I now turn is whether there
are any substantial and compelling circumstances justifying a
departure from these sentences.
[9]
It was submitted on behalf of the accused that the state has proved
no previous convictions against him. The accused is
now 59
years old as he was born on 17 July 1960. His wife died in
2015. He lived in his homestead with his son Kekeletso
who has
since died. He has been in prison since his arrest on 28 June
2016 for a period of just over three years and three
months. He
has since developed asthma and sometimes he coughs and vomits blood.
However, no evidence of him having
been diagnosed or treated for this
sickness was given. On the basis of these personal
circumstances of the accused it was
submitted that I should depart
from the prescribed minimum sentences.
[10]
In
Director
of Public Prosecutions, KwaZulu Natal v P
[2]
the traditional approach to sentencing was described in the following
terms:
“
[13] 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 sentence, the court is required
to have regard to the
main purpose 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.”
[11]
Mr Lumkile Sitshinga was called by the state to testify in
aggravation of sentence. He testified that he is the younger
brother of the deceased. The deceased was marred with two
children. The first born is Qhwane, a 22 years old young
man
and a girl named N[…] who will turn 18 years old in December
2019. Qhwane could not further his education after
passing
matric due to financial difficulties after the death of his father.
N[…] is now doing matric for which she
is financially assisted
by him to the extent necessary. He testified that this is
difficult because the death of the deceased
meant that he must take
over some of his late brother’s responsibilities in taking care
of his children in addition to his
own responsibilities.
[12]
At the time of his death the deceased stayed at their home with their
mother. His mother developed diabetes and high
blood pressure
after the death of her son, the deceased. The deceased’s
wife died in 2015. Some of what becomes
clear from the evidence
of Mr Lumkile Sitshinga is that the deceased was a family man who
took care of his wife and their two children.
During the main
trial Mr Dingalibala had testified that the deceased was employed by
him as a taxi driver. He therefore earned
an honest living to
support his family. In fact on the night he was murdered he was
going to take passengers on a special
trip to Ugie. He was
therefore a good citizen who did not resort to crime but did the
least he could do to provide for his
family.
[13]
The deceased’s children were orphaned in a merciless killing
that was motivated by greed. Their lives changed forever.
Qhwane, the eldest of the two children is now sitting at home
unemployed when his chances of being employed could have been vastly
improved if he had a tertiary qualification in these difficult
economic times. His little sister N[…] is similarly
facing an uncertain or even a bleak future as the last of their
parents, their father was killed resulting in them being orphaned.
When their father was killed their mother had died only a year before
in 2015. Therefore, they had to bury their parents
in two
successive years being 2015 and 2016. It goes without saying
that the community of Ramofole must be horrified at the
deceased’s
senseless killing.
[14]
The accused maintained his innocence throughout the trial and gave a
version that suggested that it must be Mr Mbobo, the 204
witness, not
him who killed the deceased. His version during the trial which
was put to state witnesses and which he confirmed
during his evidence
in chief was that Mr Mbobo had arrived at his homestead where the
deceased had had nose bleeding after he fell
on a verandah. He
had further testified that the deceased had no injuries when he left
with Mr Mbobo who said he was taking
him to hospital in the
deceased’s vehicle. All of these were lies calculated to
ensure that it was Mr Mbobo who would
be held accountable for the
deceased’s death while he knew that he alone had killed the
deceased in his homestead.
He cunningly involved Mr Mbobo in
this murder by getting him to assist him in dumping the body of the
deceased at Coldstream farm
in Maclear.
[15]
It was submitted by his legal representative that he was remorseful.
However, he elected not to open his heart to the
court and express
verbally and directly his remorse about the murder of the deceased.
If anything this confirms his lack
of remorse which was evident
throughout the trial. Having been in prison for a period of
three years during which he had
opportunity to reflect on his actions
he came to court and lied about what happened and made every effort
to ensure that he did
not pay for his crimes.
[16]
When confronted with the evidence of the state which exposed his lies
he succumbed under cross examination as he was no longer
able to
sustain his lies. When he was confronted with the improbability
of his version under cross-examination he changed
his mind and
admitted that he murdered the deceased by assaulting him with a knob
stick in that bedroom. This, in my view,
was not out of remorse
or any sense of regret for his actions. He had nowhere to hide
as his lies had been exposed by the
state witnesses.
[17]
In
S v
Matyityi
[3]
Ponnan JA made some apt observations on remorse. He said:
“
[13] There is,
moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that
does not without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another.
Thus genuine contrition
can only come from an appreciation and acknowledgment of the extent
of one’s error. Whether
the offender is sincerely
remorseful and not simply feeling sorry for himself or herself at
having been caught, is a factual question.
It is to the
surrounding actions of the accused, rather than what he says in court
that one should rather look. 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. Until and
unless that happens, the genuineness of the contrition alleged to
exist cannot be determined.
After all, before a court can find
that an accused person is genuinely remorseful, it needs to have a
proper appreciation of, inter
alia: what motivated the accused to
commit the deed, what has since provoked his or her change of heart,
and whether he or she
does indeed have a true appreciation of the
consequences of those actions.”
[18]
The accused did not give evidence in mitigation of sentence.
All the accused’s personal circumstances referred
to above were
part of the submissions made on his behalf by his legal
representative on the basis of which I was urged to find
that there
were substantial and compelling circumstances justifying a departure
from the prescribed minimum sentences. There
is thus no factual
or evidential basis on which the accused can be said to be
remorseful. He never showed any remorse during
the trial,
maintaining his innocence which he sought to sustain through shere
craftiness until the whole façade of innocence
and ignorance
about these crimes unravelled under relentless cross examination by
state counsel Mr Pomolo.
[19]
It was also submitted by Mr Sakwe who appeared for the accused that
the accused’s wife died in 2015. It is indeed
unfortunate
that anybody should lose their loved ones. However, the very
following year of the passing on of his wife at
a time when in most
societies and cultures the accused could still be mourning the death
of his wife, he had already moved on and
planned these crimes.
He executed this murder with merciless gruesomeness at the very home
which he had shared with his wife
who had passed on only a year
earlier. It did not end there, he also got his son to assist
him in loading the body of the
deceased in the vehicle of the
deceased and went on to implicate Mr Mbobo by getting him involved in
disposing of and dumping the
body of the deceased far away from his
homestead which was the murder scene.
[20]
In a normal family one would have thought that even his son Kekeletso
was still slowly coming to terms with the death of his
mother who
died a year earlier. It is unclear whether Kekeletso was part
of the conspiracy but if the accused’s version
is to be
accepted, Kekeletso was not involved in the conspiracy and the murder
of the deceased or in any of the crimes. He
was only asked by
the accused’s to assist him in loading the deceased in the
vehicle. Whether or not Kekeletso was
forced to load the
deceased’s body by the accused or he willingly did so is
unclear as all these details are only known to
the accused who is the
only living person who was at the crime scene when the crime was
committed.
[21]
The full details of the planning, the gruesome killing, and the final
inhumane dumping of the body of the deceased will never
be known.
The details regarding the sale of the vehicle of Mr Dingalibala in
Lesotho which was in possession of the deceased
will also never be
known as some of this information is known only to the accused.
The other criminals involved
in the criminal sale and
purchase of Mr Dingalibala’s vehicle are walking freely,
roaming the streets with a real potential
to commit further crimes.
This is so because the accused elected not to tell the full truth of
what actually happened.
It is not without significance that the
accused and other people involved in his criminal conduct committed
cross border crimes
between South Africa and its neighbouring
country, Lesotho.
[22]
In the recent past this country was engulfed in a wave of criminality
targeting foreign nationals who came to this country
to eke out a
living for their families. Some have had to leave this country
with their small businesses having been looted
and some burnt to
ashes in what has become known as xenophobic violence. It is
the criminality such as the one the accused
was involved in that
contributed to that scary situation. The person or persons to
whom the vehicle was sold in Lesotho and
how it got registered in
that country are part of the facts that remain unknown.
[23]
The well-known principles of our law on sentencing which must always
guide a sentencing court at arriving at an appropriate
sentence that
fits the accused, the crime and the society were explained succinctly
in
S v
SMM
[4]
as follows:
“
[13] …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 involved a very
high degree of
responsibility which should be carried out with
equanimity. As Corbett JA put in
S v Rabie
:
‘
A judicial officer
should not approach punishment in a spirit of anger because, being
human, that will make it difficult for him
to achieve that delicate
balance between the crime, the criminal and the interests of society
which his task and the objects of
punishment demand of him. Nor
should he strive after severity, nor, on the other hand, surrender to
misplaced pity.
While not flinching from firmness, where
firmness is called for, he should approach his task with a humane and
compassionate understanding
of human frailties and the pressures of
society which contribute to criminality.’”
[24]
As indicated before, submissions were made regarding the accused’s
personal circumstances. In my view none of them
are substantial
and compelling. In
Malgas
the court warned against
paying lip service to what the legislature has ordained to be an
appropriate sentence. In this country
crime is rampant and
criminals are running amok with impunity inducing a general sense of
fear in society. The departure
from the imposition of minimum
sentence can only be justified if substantial and compelling
circumstances are found to exist and
not an individual presiding
officer’s preference for a lesser sentence. In
Malgas
the court said that an attempt at arriving at standardised minimum
sentences for the specified serious crimes with the requisite
residual discretion to depart from them being allowed is the norm.
[25]
In
S v
Vilakazi
[5]
the court made the following salutary observations on the personal
circumstances of an accused:
“
[58] …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 … But they are nonetheless relevant in another
respect. A material
consideration is whether the accused can be
expected to offend again. While that can never be confidently
predicted his or
her circumstances might assist in making at least
some assessment …”
[26]
In this case these crimes were motivated by greed and executed with
extreme brutality. There was neither remorse nor
the gushing
out of the expression of regret for the crimes beyond the submissions
made on behalf of the accused by his legal representative.
There was nothing said or done by the accused or on his behalf to
suggest that he could be rehabilitated. The fact that he
is a
first offender at the age of 59 years must actually count against him
as he should have known better than succumb to greed.
His very
first offences are so brutal and were pre planned and executed with a
clear plan to conceal the truth.
[27]
The accused has been in custody since his arrest on 28 June 2016 for
just over three years and three months. However,
it does not
follow that an accused must always and in all circumstances get a
discount for the pre-sentence incarceration period.
This, like
all sentencing decisions remains part of the residual discretion of
the court in my view. I am aware of the Supreme
Court of
Appeal’s decision in
Dlamini
v S
[6]
in which Cachalia JA expressed himself as follows:
“
[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. However, courts
have not spoken clearly on
how to calculate this period. One approach has been to do an
exact subtraction; another is to
deduct the period actually spent;
yet another is to treat the time spent in custody, at the very least,
as equivalent to the time
spent served without remission; and a
fourth, more adventurous method is to treat the period as equivalent
to about twice the length,
because of the harsher conditions that
awaiting-trial prisoners are subjected to in comparison with the
conditions of sentenced
prisoners.”
[28]
I do not understand the court in
Dlamini
to have said that the
pre-sentence incarceration period must always be deducted from the
sentence imposed. I understand the
court to have said that this
period must be taken into account, and an appropriate sentence
imposed after due consideration of
that period. To say that the
pre-sentence period of imprisonment must always be deducted in all
cases under all circumstances
would ouster the discretion of the
court in the delicate balancing act that is involved in sentencing
decisions.
[29]
The most glaring example of the difficulties that would arise is the
fact that the legislature has not spoken on the issue.
Secondly
it would be difficult to impose life imprisonment that is consonant
with a compulsory deduction for a pre-sentence imprisonment.
Thirdly, there is a statutorily ordained process of bail
applications in which it is judicially determined whether it is
in
the interests of justice or not that despite the presumption of
innocence an accused person must remain in custody until his
or her
trial is finalized. In some cases the accused person, having
been refused bail, is eventually acquitted, how should
a court that
acquits him deal with the obvious fact that he had been in prison and
has now been acquitted. Must it automatically
determine an
appropriate compensation or as it is, that is left to the civil
proceedings which may or may not be instituted.
If so does that
adequately serve the overarching interests of justice which courts
are all about?
[30]
On the facts of this matter I consider it appropriate to reduce the
period of imprisonment in respect of count 2 to 11 years
and 7 months
in consideration of his pre-sentence incarceration. Besides the
fact that the accused has been in prison for
over three years, the
vehicle was recovered and Mr Dingalibala’s insurance claim was
settled. In my view these facts
must ameliorate the sentence
imposed all things considered.
[31]
In the result the accused is sentenced as follows:
1. The accused is
sentenced to 11 years and 7 months imprisonment in respect of count
2.
2. The accused is
sentenced to life imprisonment in respect of count 3.
3. The sentence in
respect of count 2 shall run concurrently with the sentence in
respect of count 3.
________________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State: L POMOLO
Instructed
by: NDPP
MTHATHA
Counsel
for the Accused: M SAKWE
Instructed
by: LEGAL AID BOARD
MTHATHA
Matter
heard on: 16 August 2019
Judgment
handed down on: 19 September 2019
[1]
S v
Malgas
2001 (1) SACR 469 (SCA)
[2]
Director
of Public Prosecutions, Kwazulu Natal v P
2006 (1) SACR 243(SCA)
at 250
[3]
S v
Matyityi
2011 (1) SACR 40 (SCA)
[4]
S v SMM
2013 (2) SACR 292 (SCA)
[5]
S v
Vilakazi
2009 (1) SACR 552
(SCA) at 574
[6]
Dlamini
v S
2012
(2) SACR 1
(SCA)