About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 82
|
|
S v Bixa (CC60/2018) [2019] ZAWCHC 82 (27 June 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No.:
CC60/2018
In
the matter between:
THE STATE
and
MR
BULAWA
BIXA
Accused
JUDGMENT ON SENTENCE
DELIVERED ON 27 JUNE 2019
SALIE-HLOPHE,
J:
[1]
Mr. Bixa, on the 02
nd
of May 2019, this Court found you
guilty and convicted you as charged, namely, that you murdered your
nephew, 4 year old Bonani
Kevin Poni by stabbing him 32 times with a
knife and that the murder was committed with the direct intention to
kill him.
[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]
The general rule as held by the Appellate Division in
S v Rabie
1975 (4) SA 855
(AD) at 862 G-H
is that:
"..
.punishment
should fit the criminal as well as the crime, be fair to society and
be blended with
a
measure
of mercy according to the circumstances."
[5]
You gave evidence in mitigation of sentence. Your counsel also called
social worker Ms. Anthea Gallant as well as your mother,
Ms. Bulelwa
Bixa. Ms. Mahlasela also addressed the Court
ex parte apropos
factors which I should take into account in order to impose a
lesser sentence to you in respect of the crime of which you had been
convicted. Counsel for the State, Mr. Sityata, on the other hand
addressed the Court
ex parte
in respect of submissions which
in his view are aggravating, warranting the imposition of a harsher
sentence.
[6]
The legislature otherwise known as the lawmakers have recognized that
certain serious crimes must be met with a minimum sentence.
You have
been convicted of murder, falling under Part II of Schedule 2 and as
a first offender of this type of crime, you should
be sentenced by
the Court to a minimum sentence of 15 years imprisonment in terms of
Section 51(2)(a)
of the
Criminal Law Amendment Act 105 of 1997
commonly referred to as the minimum sentence legislation.
[7]
I had at the start of 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, including the weapon you used, the brutality of the murder
and the age of the deceased, in respect of which
you had been
convicted. Both counsel had an opportunity during the adjournment to
take adequate instructions and they had each
addressed me on their
submissions in that regard.
[8]
I will now turn to the triad factors which need be considered herein,
starting with your personal circumstances.
PERSONAL CIRCUMSTANCES:
[9]
Born in Mthata in the Eastern Cape in 1995, you had recently
celebrated your 23
rd
birthday. Your mother raised you as a
single parent along with two other siblings. You have a fulfilled
childhood and upbringing
with no exposure to violence or trauma.
Further care was provided by your maternal grandmother when your
mother took up employment
in Cape Town and around 2011 you relocated
to Delft, Cape Town living with your cousins and extended relatives
with whom you enjoyed
a good relationship, including your brother,
the father of the deceased child. Your relatives, which included your
mother as well
as the father of the deceased contributed to your
living expenses. By all accounts your life as it had unfolded over
the years,
living with your mother and grandmother and later with
your relatives in Delft had been positive and you were well loved and
cared
for. Though the Delft area is rife for gangsterism you had,
with the support of your family, the fortitude and resilience to
resist
in becoming a member.
[10]
Whilst you worked as a general worker in 2016, you abandoned your
employment after a few months to attend to matters in the
Eastern
Cape. You had not been employed thereafter and had been in custody
for approximately 20 months since the date of this incident
in
October 2017. Your mother testified that she was shocked with the
murder of which you had been convicted, the victim involved
and
struggles emotionally in the wake thereof. Ms. Gallant testified that
she consulted with you after you had been convicted of
this murder
and in preparation of a pre sentencing report which had been
handed in as Exhibit E. She also testified that in
her professional
opinion you remained unforthcoming with the details leading up to the
death of the deceased and that you were
not candid in the matter.
[11]
Your counsel further submitted that your youthful age at 23 (21 at
the time of the offence), as well as the fact that you could
be
rehabilitated , that you are a first offender and that you had spent
20 months awaiting trial should be taken into account as
factors
which viewed cumulatively justifies this Court to depart from the
imposition of the prescribed 15 year sentence. I will
deal with that
aspect later in this judgment.
[12]
I turn now to the second factor to be considered, that being the
crime 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 this offence was non other than your nephew. You were
his uncle and in a position of trust. You lived in the
same home and
in fact it is not in dispute that the child was essentially in your
care in light of the fact that both his parents
were employed, making
living with you in the house in Delft easier for the child and his
parents. You remained adamant during the
trial, as well as your
testimony in mitigation, that you cannot remember the moment at which
Bonani had been savagely stabbed to
death. Had you displayed a
genuine remorse for your conduct, it would have been viewed by this
Court as a mitigatory factor in
considering a more lenient sentence.
However, this Court considers it aggravating that you vacillated in
accepting responsibility
for this child's death. On the evening of
this tragic event you apologised to Ms. Lola Poni, the mother of the
deceased, for stabbing
her young son. Then you went back on this
acknowledgment and denied how the child had died or that you had any
knowledge about
it. This going to and fro with the truth and your
account of events has had an adverse and torturing effect of the
loved ones of
this child, which effectively robs them from healing in
their grief and accepting the traumatic events and reality that their
child
had been murdered. You are a not only a cold-blooded killer but
indeed also a coward for doing this to your own family. Bonani was
only 4 years old. He was an innocent little boy who loved his
surroundings and his family, which includes you as his uncle. He
loved watching television and that was the last thing he had been
doing when you went about to brazenly and gruesomely stab him
a
staggering 32 times. The pathologist whom performed the post mortem
examination on the body of the deceased, Dr. Lambert Mostert,
testified as to his findings which were also recorded in his post
mortem examination report. He determined that the cause of death
was
due to multiple stab wounds to the body, 32 in total made up as
follows: 11 to the left upper chest, 8 to the lower chest,
10 to the
back, one to the right upper arm. So severe was the infliction of the
stab injuries, that you perforated your young victim's
left lung 9
times with 1 incised wound, the heart sustained three perforations
with 1 stab wound. The force of these stabbings
were so severe and
violent that various fractures to the rib cage were sustained
including a traumatic herniation of the colon,
simply understood to
be that the colon had ballooned out of the rear or the child's body
through the gashes sustained to his back.
The deceased child also
sustained defensive injuries on his wrists and hands, indicative that
he tried to ward off your attack.
Defensive wounds and cuts inflicted
on the top side of his hands are interpreted to be as a result of
closing his face with his
hands as a way to visually block out the
fatal attack on him.
[14]
This child was vulnerable, defenceless and at 4 still just a toddler.
He stood no chance in surviving the fatal attack. It
is undeniable
that he would have been confused, shocked and scared in the last
moments of his life. After all, the person whom
subjected this
egregious violence on him was none other than someone he had trusted,
that his parents trusted, that he loved and
had occasions to play
with. Mr. Bixa, you breached that trust in the most horrific way. You
did not take this Court into confidence
as to what had caused you to
have this outburst of rage and anger to the extent that you killed
your nephew. From the evidence,
it is highly likely, that Bonani
wanted to watch cartoons which you did not want to watch. The loud
music which you repeatedly
played at that time suggests that you
wanted things your way. In the process of asserting yourself over
this child, you took his
life in the most gruesome manner. It is a
further aggravating feature that in no way did you desist or pause in
your attack for
you proceeded in constant and consistent fury.
Stabbing a child 32 times would have taken some time, he would have
screamed, exclaimed
in pain and anguish, but like a lamb to a
slaughter, you forged ahead without any care or concern. Even after
the attack, you did
not call for medical assistance. You indicated
that you saw the child in a pool of blood and did not even go over to
him to see
if he was dead or alive and if so, how you could assist
him. You kept loved ones and others away, by locking the house,
refusing
anyone from entering and made sure to hide yourself to delay
being confronted with what you had done. You did not care about
anyone
other than yourself. Even in this child's last moments, you
stopped him from being comforted by his mother. You even stopped him
from being held in those last moments or in the moments after his
death. It is difficult to imagine the unbelievable pain and trauma
Bonani's mother would have felt as she ran towards the house where
she was told her child had been attacked, the anguish she would
have
experienced, being locked out of the house and seeing through a
window her child lying in a pool of blood. You stood with
the knife
in your hand, blood dripping down from it and saying you had stabbed
the child which you later deny. This is the conduct
of someone who is
completely unmoved by the trauma experienced by everyone around you.
You were not only unsympathetic about what
you had done, you were
completely aloof and uncaring as to the raw emotions and trauma which
unfolded around you.
INTERESTS
OF THE COMMUNITY:
[15]
Gratuitous violence and the infliction of harm and attack on children
has sadly become an everyday feature in our society.
It filters
through our communities, the courts and media like shockwaves. This
crime is another unfortunate reminder that our children
are under
attack and siege. It is undeniable that we are experiencing high
levels of violent crime and in particular with reference
to this
case, violent crime against children. As we build a cohesive society
within our communities and in our country, we need
to send a clear
and an even louder message to our youth that violence has no place in
our society and that it is strongly condemned.
It can never be seen
to be the order of the day but through its frequency, by way of
social fatigue, become an acceptable form
of life. Our Courts need to
continue to send 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. It is thus important and the duty of the
Courts to contribute in
their role as the justice system to impose
appropriate sentences, particularly where children are the victims of
violent crimes,
attacked and murdered.
[16]
Section 28
of the Bill of Rights in our Constitution states that in
addition to basic nutrition, shelter and care, every child has:
'the
right to be protected from maltreatment, neglect, abuse or
degradation.'
The inclusion in the Constitution of a special
section on the rights of the child was an important development for
South African
children to secure their safety and protection.
Unfortunately children continue to be exploited, harmed and murdered,
notwithstanding
the inclusion of their fundamental rights to safety
and protection. The Court must take these rights into account when
meting out
punishment for offences, such as the ones of which you,
Mr. Bixa, had been convicted.
[17]
Children have the right to feel safe and protected wherever they go,
to play happily in their playgrounds, to walk to and from
school
freely without fear of violation or attack. Children have the right
to be nurtured within their homes and community; to
expect a haven in
which they can put all of their enquiring minds to the fascinating
world around them; to explore the innocence
of their youth and to
draw strength from the memories of their childhood to become
fulfilled and balanced adults. In short, they
have the right to look
to the world around them to create an environment free and protected
from crime and violence. The late Chief
Justice Mahomed echoed
similar sentiments regarding the rights of women and the acts of
violence and crime that they are subjected
to in the well-known and
oft quoted dictum of
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
SCA at 345 A-B.
[18]
It is important to state that as the accused, you cannot be
sacrificed at the altar of deterrence for other would-be offenders,
nor can it impose punishment on you anger. However, 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.
CONCLUSION:
[19]
Your counsel submitted that, inter alia, your youth, prospects of
rehabilitation, the fact you are a first offender, that you
never had
brushes with the law and that you had spent time awaiting trial as
cumulative justification for departing from the 15
year sentence that
you face.
[20]
Mr. Bixa, I have taken all the relevant factors into account. The
Court takes into account the time which you had spent in
custody and
is mindful not to impose a sentence which could break you. The Court
is alive to the prospects that you can come out
of prison
rehabilitated and become a responsible member of society.
[21]
Weighing up all the mitigating and aggravating factors and
circumstances, I can find no other suitable sentence which would
fit
you as the criminal, the crime you had committed and which is fair to
society. The Court, in exercising its discretion, believe
that the
aggravating circumstances outweigh those in mitigation. To impose the
minimum prescribed sentence would, on the facts
of this case, be
woefully inappropriate and would lead to an injustice. I therefore
impose a punishment exceeding the minimum sentence
of 15 years. I am
of the view that a sentence of 22 years would fit the crime, be just
and equitable and meet all the objectives
of sentencing.
For
the reasons aforesaid, I order as follows:
(i) You are hereby sentenced to 22
years direct imprisonment;
(ii) In terms of the
Firearms Control
Act 60 of 2000
, you are declared to be unfit to possess a firearm.
___________________
SALIE-HLOPHE,
J