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[2019] ZAWCHC 76
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S v Nobade (CC16/2018) [2019] ZAWCHC 76 (19 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.:
CC16/2018
In
the matter between:
THE
STATE
and
MR GOODMAN NOBADE
Accused
CORAM:
SALIE-HLOPHE, J
DATE
OF COMMENCEMENT OF HEARING:
13 MAY 2019
DATES
OF HEARING AFTER COMMENCEMENT:
20 MAY 2019
21 MAY 2019
22 MAY 2019
27 MAY 2019
28 MAY 2019
29 MAY 2019
6 JUNE 2019
10 JUNE 2019
11 JUNE 2019
DELIVERED:
19 JUNE 2019
COUNSEL
FOR THE STATE:
Advocate Blows
COUNSEL
FOR ACCUSED:
Advocate Mtini
JUDGMENT ON SENTENCE DELIVERED ON
19 JUNE 2019
SALIE-HLOPHE, J:
[1]
Mr. Nobade, on the 10
th
of June 2019, this Court found you guilty as charged and convicted
you of (1) having assaulted your wife, Ms Agnes Mzisa, with
the
intent to do grievous bodily harm, (2) the murder of your wife with
the direct intention to kill her as well as (3) defeating
the ends of
justice by dismembering of her body, cleaning up the crime scene and
disposing of her body parts at various locations
in and around the
area of Khayelitsha. Further to that you supplied false information
to the police in order to mislead the investigation
as to the true
method of her death and that you had in fact murdered her.
[2]
Now is the time for me to meet out an appropriate sentence to you for
the crimes of which you had been convicted. The
determination
of a suitable sentence does not entail a mechanical process in which
predetermined sentences are imposed for specific
crimes. In
each case the sentencing court has to take into account all relevant
factors, afford the appropriate weight thereto
and strike a balance
between the various interests to consider. In determining a
sentence which is just and fair, I have
regard to the triad of
factors that have to be considered as set out in the case of
S
v Zinn
1969 (2) SA 537
(A)
.
The Court must therefore take into account your personal
circumstances as the accused and being the person convicted of
the
crimes, the nature of the crime including the gravity and extent
thereof and the interests of the community.
[3]
In deciding on such a sentence the Court must tinge it with a measure
of mercy and strive to meet the objectives of punishment
being
retribution, prevention, deterrence and rehabilitation.
[4]
In mitigation of sentence, your counsel addressed the Court ex parte
and placed factors before me which I should take into account
in
order to impose a lesser sentence to you in respect of the crimes of
which you had been convicted. Counsel for the State
on the
other hand led evidence in the form of two (2) witnesses, namely, the
son of your late wife as well as your sister-in-law.
Furthermore submissions were addressed ex parte which in the view of
the State are aggravating and warranting of the imposition
of a
harsher punishment namely, life imprisonment.
[5]
The legislature otherwise known as the lawmakers have recognized that
certain serious crimes must be met with a minimum sentence.
In
respect of the conviction of the murder you had committed, a minimum
period of 15 years imprisonment is prescribed in terms
of
Section
51(2)(a)
of the
Criminal Law Amendment Act 105 of 1997
, commonly
referred to as the minimum sentence legislation.
[6]
I had during closing submissions ventilated with your counsel and
counsel for the state that an appropriate sentence could in
the
circumstances warrant of this Court to exceed the prescribed minimum
sentence, taking into account the aggravating features
of the murder
in respect of which you had been convicted and they had each
addressed me on their submissions in that regard.
[7] I will now turn to
the triad factors, starting with your personal circumstances as had
been highlighted by your counsel.
PERSONAL
CIRCUMSTANCES:
[8]
Your counsel submitted that although your identity document indicates
your year of birth to be 1961, making you 58 years of
age, your
instructions are that you were in fact born in 1954. He
requested of this Court to accept you as being 64 years
of age,
meaning that at the time of the offence in April 2017 you were aged
62. It was also submitted that you are the father
of four
children, the youngest of which is still schoolgoing, born in 2006.
[9]
You have been incarcerated for a period of two years, whilst awaiting
the finalisation of this matter, having been arrested
in June 2017.
[10]
You have a number of relevant previous convictions which includes
elements of violence and dishonesty. Your counsel correctly
argued
that as your last previous conviction was in 1997, it should be
ignored by this Court as it had occasioned more than 10
years ago.
For this reason you stand before this Court as a first offender.
[11]
As regards the aggravating features of this crime, it was submitted
on your behalf, that this Court must bear in mind that
the murder of
your wife was uncovered at your instance in that you informed your
niece that you had killed your wife, which had
effectively set the
wheels of investigation and justice into action. Further to
that, it was contended that your lowered
perception of women must be
seen in the context that you are from a rural community, that you are
illiterate and that the cultural
beliefs to which you prescribe
perceive women to be subordinate to men and that they are required to
dress in a particular manner.
I will deal with that further on
in this judgment.
[12] I turn now to the
second factor to be considered, that being the crimes of which you
had been convicted, the manner of execution
thereof as well as the
nature, seriousness and impact thereof.
THE
OFFENCES:
[13]
The victim of these offences was non other than your wife with whom
you had been married for a number of years. She was
your
partner and shared a home with you. It was in this very home
that you had murdered her and gruesomely dismembered her
body by
cutting her up with one of your kitchen knives.
[14]
The Court has heard the shocking and gruesome details of the
heinously abusive manner in which you conducted yourself towards
your
wife, so much so she pleaded for help from your family as the elders
for remedial measures and to counsel your marriage.
She called
for protection through the legal mechanisms of a domestic violence
order, setting out in her affidavit that she feared
you, that you
abused her in every conceivable manner and, amongst other complaints,
that she bore the scars of repeated injuries
inflicted by you.
She also indicated that she feared for her life and that she did not
know what else you are capable of
doing to her.
[15]
It is clear to this Court that your wife suffered during this
marriage. You had systematically abused her in every form
possible. You belittled her, beat her up, insulted her, falsely
accused her of having loose sexual morals, humiliated her
in the
presence of others, you stripped of her dignity and her pride and
treated her as an object. The injuries you inflicted
were
directed amongst others at her face, her hair, her breasts, her
thighs, her chest. In short, it was directed to the
very parts
of her body that would present her as a woman. The manner in
which you inflicted the injuries to your wife is
consistent with the
clear hatred and lowered impression you have of women in general.
[16]
It is significant to this Court that instead of protecting Agnes,
Msimane as your family named her as your Makoti, you violated
her,
escalating the level of harm and injuries to such an extent that you
took her life. Even this was not enough for you.
As a
final act of contempt for her and for women as a whole, believing as
you stated that women have too many rights, you went
about to cut her
up into pieces, dumping pieces of her body in different areas.
Only her head and one upper leg was recovered,
the rest had perished,
washed away in the stream where you had dumped it and in all
likelihood eaten up by dogs and pigs.
[17]
You did not testify in mitigation of sentence and did not display
remorse for the murder of your wife. Had you done so
it would
have been taken into account as a mitigating factor. That you
elected not to do so, will however not be viewed as
an aggravating
factor.
[18]
Your counsel requested me to consider that as a sign of contrition
that it was ultimately owing to your phone call to your
niece that
the police got involved. This is a very myopic view to adopt.
Your wife was an active and responsible member
of society. She
was the mother of three children, she was loved by friends and
family, she was a responsible employee and
an active member of the
church. It would have been a matter of time for her to be
reported as a missing person and for you
as her husband to explain
and be interrogated as to her absence. Taking into account the
manner in which events had unfolded,
you played a cat and mouse game
with family members and with the police. In no way can the
deceptive manner in which you
had gone about to explain your wife’s
absence afford you any form of mitigation. In fact, the manner
in which you spun
a web of lies surrounding her death and when and
where to find her remains, was done methodically to maximise your
benefits, in
the hope that her scattered remains would have perished
in such a manner that you could make her death anything you wanted it
to
be. In the course thereof, you did not spare her family and
loved ones from the pain that they would have suffered and their
anguish as what had happened to her or where her body was.
[19]
Mr. Magoma, the eldest son of the deceased, testified before this
Court as to the loss that he feels with the death of his
mother.
He described his mother to have been someone whom cared and provided
for him and his two younger siblings in a manner
which no one else
can replace. He explained how painful her death is to
them, the emotional gap it has caused them
in their lives and how
distraught he is to have learnt the extent of his mother’s
abuse at the hands of the accused, the
way in which she died and what
the accused had done to her body after her death. He testified
that he continues to be angry
about these events, that he struggles
to process and accept her death and that his education had suffered,
having dropped out of
matric during the year of her death. In
these circumstances he is forced to forge ahead in order to provide
for himself and
look after his younger siblings, a situation that
continues to be very difficult for them.
[20] Mrs. Gladys Nobade,
the wife of your brother, testified that she had been married into
the family since 1973. Her testimony
essentially challenged
your counsel’s submissions as per your instructions that you
are 64 and not 58 years of age as per
your identity document and she
further denied any knowledge of you having children. More
specifically she denied that you
have a minor child as claimed in
respect of whom you provide physical support and care. Mrs.
Nobade, who also testified during
the trial, had consistently made a
good impression to this Court as an honest and credible witness.
Furthermore, a copy of
your identity document had been placed on
record from which this Court is entitled to presume the regularity ex
facie the document.
In the absence of evidence to the
contrary. In the premise, the Court accepts the evidence
presented by the State that
you are in fact 58 years of age and that
you have no children, in particular no minor children, for this Court
to take into account
and that you had lied about these facts to
manipulate the Court so as to gain its sympathy.
INTERESTS
OF THE COMMUNITY
:
[21]
With regard to the interests of society it is undeniable that we are
experiencing high levels of violent crime and in particular
with
reference to this case, violent crime against women. In two
recent cases where the accused had been convicted of murdering
of
their wives and concealing their deaths, that being, S v Rohde, Case
Number CC43/2017 and S v Packham, Case Number CC50/2018,
the
scourge of femicide in our society had been dealt with in sentence.
In both these matters, the narrative had become
a familiar feature in
our Courts, society and the media: an unhappy husband eliminates his
wife by murdering her and then concealing
her death to escape the
letter of the law. In
Rohde
,
the accused murdered his wife and attempted to conceal her murder by
staging her body and the crime scene as if she had committed
suicide. In
Packham
,
the accused murdered his wife in their home, then set her car alight
with her body in the boot at a nearby train station to suggest
that
it was a random stranger who had murdered her. S v Rohde, the
Court set out in the judgment handed down in respect of
sentence that
intimate partner violence is the most common form of violence women
experience in this country. Women killed
globally in 2013
revealed the following statistics. The data from 66 countries
found globally that
39%
of homicides of women are committed by an intimate partner.
When comparing the global data of South Africa, the proportion
of
intimate homicides in our country stands at
57%
.
We have become the femicide capital of the world. Further,
that the killing of women by their partners has clearly
become an
epidemic and enormous social problem. The prevention of these
incidents of murder and violence against women clearly
commands of us
as a society to create a greater consciousness and social milieu
which promotes gender equality, the rights of women
to their
self-determination in all spheres of their life, including their
careers, association, movement and in their marriages,
the right to
be equally protected, human rights and justice.
[22]
It is thus important and the duty of the Courts to contribute in our
role as the justice system to impose appropriate sentences,
particularly where women are murdered in the context of their
marriages, their relationships and homes. Whilst it is so that
you, as the accused, cannot be sacrificed at the altar of deterrence
for other would-be offenders, nor can it impose punishment
in anger,
the interests of the community must be satisfied that offenders of
serious crimes such as these be punished accordingly.
If
offenders are punished too lightly for serious offences, society
would lose confidence in our Courts and so too would law and
order be
undermined. Serious crimes of this nature therefore compel that
the objectives of retribution and deterrence weigh
more than the
objectives of rehabilitation of the offender and accordingly the
interests of the accused would recede to the background.
[23]
Whilst counsel for the accused argued that I must take into account
that the accused’s lowered perception of women and
their
subservient role to men emanates from a cultural perception, I must
add that there is no civil society, particularly a society
based on
our Constitutional principles of the right to life, equality and
dignity, which would condone violence against women,
the murder of
women and the dismemberment of their bodies after the termination of
their lives. Counsel for the
accused also argued as
a mitigating factor that the crimes were committed in the course of
an unhappy marriage, more particularly
that the deceased did not
oblige the accused as he deemed fit and thus ought to be seen by this
Court as “crimes of passion”.
[24] It is an
unconstitutional notion that the killing of a woman by a man in the
torrent of a stormy marriage or quarrel warrants
the imposition of a
lesser sentence. This is born from an antiquated and
patriarchal notion that women ought to be subservient
to their male
partners. It flies in the face of the fundamental human rights
of equality and dignity. It has become
a regular expression in
recent years from our judicial benches that the murder and crimes of
violence committed by a man against
his wife or partner is an
aggravating feature of the crime, particularly so as he has the duty
and the responsibility to protect
his wife or partner and not to harm
her. It has become a sad reality that violence against women is
not only rife in public
and outdoor places but indeed violence
against women are being perpetrated in their private spaces, their
homes and their relationships:
the very places, both physical and
emotional, where they ought to feel most protected and be safe.
The increase of women
being savagely murdered and butchered in their
homes or by their partners remains an attack on humanity and our
community.
It can never be tolerated. It can never be
seen to be the order of the day and in that way, by way of social
fatigue, become
an acceptable form of life. Our Courts need to
continue sending a very strong message that this conduct is morally
and legally
reprehensible and that offenders will be punished
accordingly, for if not, it could and would also result in society
losing faith
in the justice system and taking the law into their own
hands to administer justice.
AGGRAVATING
FEATURES
:
[25]
The aggravating features of the crimes which you committed, and in
particular, the murder of your wife are significant and
startling.
The violence you had exerted on her during the fatal attack was
indeed not isolated. You were very comfortable
asserting
yourself over her during the marriage with violence and abuse.
On the day of her death you simply escalated the
extent of your
physical assaults on her to such an extent that it ultimately
resulted in her murder. She was of slight built
compared to you
big and tall stature. She would have been no match to you and
you would have easily overpowered and mortally
wounded her.
[26]
During the course of the marriage she pleaded for you to reconsider
your behaviour. She engaged your family as a measure
to counsel
the marriage and to get you to desist from such conduct in the
furtherance of the marital relationship. You had time
over the many
months and years of your marriage to reflect on your abusive conduct
and to learn to restrain yourself and ultimately,
to exit the
marriage if you had felt so unhappy and unfulfilled in it.
Instead, you continued to play a pathologically deceitful
game with
her, making her and others believe that you would change; that you
would not do it again. She took comfort and
contentment in
this. She stayed in the marriage, believing (as she must have)
that you would repent and have a happy marriage.
In the end,
you continued until she was no more.
[27] Horrifically, in a
final curtain call, you chopped her up in the home you shared and
discarded of her body piece by piece.
The evidence of the State
pathologist was that the cutting up of your wife would have taken
considerable force and precision, to
cut through her body parts,
through bones and ultimately sever her limbs. But further to
that, it would have been a gruesome
act to carry out. Yet you
managed to do that, successfully too. In refuse bags you threw
her, like she was nothing
more than refuse followed up with a catch
me if you can attitude and a cat and mouse game as to where you had
thrown her remains.
You clearly have no soul. The clear and
gruesome picture which emerges from the evidence is that after
murdering your wife, you
methodically and savagely proceeded to
butcher her into pieces and then devoid of any emotion or care
disposed of her remains so
as to enhance the chances of erasing her
from this earth and getting away from facing justice for murdering
her. In the process
you robbed her family from the important
cultural burial rituals and funeral processes and allowing them to
get closure on the
death of their loved one. This is the
conduct of a heartless monster. Though you had not been
convicted of a hate crime
against women, it is a significant feature
that it is your hatred of women that permeates through the commission
of these offences.
CONCLUSION:
[28]
The State had called upon the imposition of a life sentence.
The charge sheet which formally set out the charges against
you and
which had been read out at the inception of this trial cautioned that
this Court’s inherent power to impose a life
sentence would be
sought in the event of you being convicted as charged.
[29]
In terms of the minimum sentence legislation, I am entitled to impose
a sentence in excess of the said prescribed minimum if
I am satisfied
that the aggravating features are such that it warrants a harsher
sentence. It had been held in various judgments
of this Court
and the Supreme Court of Appeal that the minimum sentence legislation
does not interfere with this Court’s
inherent jurisdiction to
impose a life sentence, even in the absence of premeditation, if the
circumstances so warrant it. (See:
S v Aliko 2019 JDR 0673 (SCA); S v
Malgas
2001 (2) SA 1222
(SCA); S v Kleynhans
(SS45/2016)
[2017]
ZAWCHC 125
(24 October 2017)
[30]
Turning to the facts and circumstances of this case, I am of the view
that the aggravating features are so extreme and shocking
that it far
outweighs your personal circumstances and other mitigatory factors to
such extent that it warrants a sentence in excess
of the prescribed
period of 15 years. This prescribed minimum sentence would be
woefully inappropriate in these circumstances
and after a careful
consideration of various suitable sentencing options,
taking
all three (3) counts together for the purpose of sentencing
,
I am of the view that you must be removed from society for the
duration of your life. No other sentence would be just and
equitable other than to imprison you for life and accordingly I
sentence you to a term of
life
imprisonment
.
[31] Finally, you are
further declared to be unfit to possess a firearm.
________________
SALIE-HLOPHE,
J