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[2018] ZAGPJHC 621
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S v Masilela (SS005/2018) [2018] ZAGPJHC 621 (21 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE
NO
: SS005/2018
DATE
:
2018-09-21
In the
matter between:
THE
STATE
and
WANDA
MASILELA
Accused
S E N T E N C E
DU
PLESSIS J
: The accused stands
convicted as follows: Count 1: Murder read with Section 51(1)
of Act 105 of 1997.
Counts 2 and 3: Kidnapping.
Count 4: Robbery with aggravating circumstances as contemplated in
Section 1 of Act 51 of 1977 read with Section 51(2) of Act 105
of
1997.
Counts 5 and 6: Illegal possession of a firearm and
ammunition.
Where
the court is now called upon to impose appropriate sentences on the
accused, the court is obliged to give consideration to
what the
appellant division, now the Supreme Court of Appeal, has termed the
‘Triad’, consisting of the crime,
the offender and
the interest of society.
In
assessing an appropriate sentence the aims of punishment, namely
deterrence, retribution, prevention and rehabilitation have
to be
considered.
An
element of mercy according to the circumstances of the case must also
be considered. (See
S v Zinn
1969 (2) SA 537
(A) and
S v Swart
2004 (2) SACR 370
(SCA) at 377 F- 378 E).
The
court will summarily bear in mind the minimum sentencing and regime
which was explained to the accused. In assessing appropriate
sentences the court will have regard in not over or under emphasising
any of the factors referred to in the Triad.
The
court has considered all factors in mitigation and aggravation in its
quest to arrive at a suitable sentence. Mr Mphanza
for the
accused addressed the court in mitigation of sentence.
The
accused did not testify. The following personal circumstances
were brought to the court’s attention: The accused
is now
28 years of age.
He
has two children aged 5 years and 9 months respectively. The
youngest child was born whilst the accused was in prison and
he did
not contribute to her maintenance. Before his imprisonment he
paid R2000 towards the maintenance of his oldest child.
However,
before his arrest he was unemployed. He did assist in the
family’s taxi venture by supervising the taxis travelling
between Johannesburg and Swaziland.
Out
of this income he also assisted in the support of his three
siblings. They stay with their family. Both his parents
are deceased.
He
had paid lobola towards the mother of his child of 9 months old.
The accused was educated up to grade 10.
The
accused has the following previous convictions: He was
convicted for housebreaking with the intent to steal and theft
on 7
October 2013, which was committed on 21 May 2013. He was
sentenced to 30 months imprisonment.
On
the 10
th
of January 2014 he was convicted of theft committed on 5 September
2013. He was sentenced to 12 months imprisonment of which
6
months imprisonment is suspended for 5 years on condition that the
accused is not convicted again of theft, fraud or an attempt
to
commit any of the mentioned offences committed during the period of
suspension.
In
terms of Section 103(1) of Act 60 of 2000 the accused was deemed
unfit to possess a firearm. The crimes the accused committed
and of which he stands convicted of are of a very serious nature,
especially so in that a person has lost his most precious possession,
his life.
Whether
one is a pauper or a king one’s life is precious. It is
again to be reiterated that our country is plaged by
a scourge
of violent crimes that do not abate. It is patently clear from
the totality of the evidence that the killing of
the deceased was
senseless, brutal and callous.
The
accused and his co-perpetrators acted with absolute disregard towards
the deceased and Ms Zulu. Even after she begged
them to let her
and the deceased free they continued driving around.
This
continued whilst the deceased was wounded and his condition
progressively deteriorated. Ms Zulu testified in aggravation
that as a consequence of the killing of the deceased she and her
family are suffering emotionally and financially.
Ms
Zulu, suffered severe personal, emotional pain as a result of the
loss of her husband was evident during her evidence.
She and
the children went for counselling.
The
one child is still receiving counselling. The deceased had
three children of his own before he married Ms Zulu.
He
has three children with the deceased. The children are 22, 16,
14, 12, 10 and 3 years old. Four of the children stay
with Ms
Zulu. She is a teacher but her income falls short in providing
for them. The deceased primarily provided for
the family’s
financial needs. He practiced as an advocate and also conducted
two businesses. His one business
supplied work to about twelve
people.
He
has thus financially contributed to society. There is a public
outcry that our system seems unable to combat and curb the
scourge of
violence.
The
court has to consider the public interest and it is not irrelevant to
bear in mind that if sentences for serious crimes are
too lenient,
the interest of justice may fall into disrepute and injure persons
and other affected by crime may take the law into
their own hands,
something that cannot be tolerated in a civilised society.
In
S v Swart
mentioned earlier the court indicated that given this fate of
violence and serious crimes it seems proper that sentencing for such
crimes should place the emphasis on retribution and deterrence.
(See also
DPP North Gauteng v Thusi
2012 (1) SACR 423
(SCA) at 429 D – I.
Both
the state and defence counsel have addressed me on whether
substantial and compelling circumstances are present and whether
I
ought to deviate from the minimum sentencing regime prescribed with
regards to the counts pertaining to the robbery and the murder
of the
deceased.
It
was submitted by counsel for the accused that substantial and
compelling circumstances exist, that would allow the court to deviate
from the prescribed minimum sentences prescribed in respect of counts
1 and 4. He submitted that the accused is still a relatively
young person.
He
was arrested on 2 August 2017 and as thus has been in custody for
about 1 year. He did not pull the trigger of the firearm
that
killed the deceased. All the offences were committed during the
same course of events. These factors should accumulatively
be
regarded as substantial and compelling. It was also submitted
that the court should take the cumulative effect of the
sentences to
be imposed into consideration.
The
state argued that there are no substantial and compelling
circumstances to be found in the personal circumstances of the
accused.
These
circumstances demeanours in the weight they are to be regarded with
when considered against the heinousness of the killing
of the
deceased.
The
accused also showed no remorse. It is submitted that the only
proper sentence to be imposed in respect of count 1 is one
of life
imprisonment.
In
order to decide whether substantial and compelling circumstances as
contemplated in Section 51 (3) of Act 105 of 1997 exists.
The
issue is to be approached as described in
S
v Malgas
2001 (1) SACR 469
(SCA) and it
proved by the Constitutional Court in
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC).
The following from
Malgas
is to be emphasised:
“
If the sentencing court on consideration of
the circumstances of the particular case is satisfied that they
render the prescribed
sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society,
so that an injustice
would be done by imposing that sentence, it is
entitled to impose a lesser sentence.”
It is clear from Malgas that the court should not for flimsy reasons
impose a lesser sentence than the one prescribed. In
applying
the test referred to in Malgas it is obvious that the conspectus of
mitigating and aggravating factors have to be considered
to decide
whether substantial and compelling circumstances exist.
I
am unable to find substantial and compelling circumstances in the
personal circumstances of the accused. Being 20 years
of age is
not under consideration of the facts of the matter a factor that
would authorise or would help this court to deviate
from the
prescribed minimum sentence.
In
S v Mabuza and Others
2009 (2) SACR 435
(SCA) at paragraph 23 it was held that:
“
Although youthfulness can in certain
circumstances constitute substantial and compelling circumstances.
The legislature in
requiring a sentencing court to depart from the
prescribed sentence in respect of offenders who have attained a age
of 18 years
only if substantial and compelling circumstances justify
this departure as clearly intended that youthfulness no longer be
regarded
as per se a mitigating factor.”
The accused is far from being a youthful offender. The accused
showed no remorse for his deeds.
Taking
into account the gravity of the murder of the deceased and the
prescribed minimum sentence of life imprisonment the period
of about
1 year detention pending the finalisation of the trial fades into
oblivion.
This
on its own cannot in the circumstances be regarded as a substantial
and compelling circumstance. (See
Selowa
and Others v The State
, decided in this
division under case number A5/2017 on 28 June 2017).
The
accused previous convictions are relevant and have to be taken into
account. His previous convictions and the offences
he has now
been convicted of demonstrate the accused disregard for the law.
Life
imprisonment is a severe sentence. Our constitution reflects
our ideals of a society. Amongst these ideals is that
freedom
is a most precious condition of men and woman.
Contrasted
against this there is an ancient adage “
Salus
populi suprema lex
”, which means
the safety of the people is the supreme law.
I
would be failing in my constitutional duty as a representative of the
judicial pillar of the state if I did not give a judgement
designed
to ensure that no member of our society ever falls victim to the
accused murderous tendencies again.
I
similarly cannot find substantial and compelling circumstances
pertinent to count 4.
Having
given the facts of this matter considerable thought the accused is
sentenced as follows:
Count
1
: Murder read with the
provisions of Section 51(1) of Act 105 of 1997 in that the accused
and his co-perpetrators acted
with a ommon purpose and committed the
murder during the course of a robbery, imprisonment for life.
Count
2
: Kidnapping 5
years’ imprisonment.
Count
3
: Kidnapping 5
years’ imprisonment.
Count
4
: Robbery with
aggravating circumstances as contemplated in Section 1 of Act 51 of
1977, read with Section
51(2) of Act 105 of 1997, 15 years’
imprisonment.
Count
5
: The illegal
possession of a firearm, 6 years’ imprisonment.
Count
6
: The illegal
possession of ammunition, 2 years’ imprisonment.
-
- - - - - - - - - - - - - -
On behalf of the State:
Adv Serepo
On
behalf of the Defence: Adv Mphaza