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[2018] ZAGPJHC 615
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S v Mokoaela and Others (SS147/17) [2018] ZAGPJHC 615 (26 October 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: SS147/17
In the matter
between:
THE STATE
and
MOPEDINYANE,
FRANCIS
MOKOAELA
Accused
1
SETENE,
LEI
Accused
2
SETLABA,
LEFA
EMMANUEL
Accused
3
MOROBI,
THABISO
Accused
4
JUDGMENT - SENTENCE
MOSHIDI,
J
:
INTRODUCTION
[1] The four (4) accused have been
found guilty of various offences; and variously as follows:
(a)
Accused 1
(Mopedinyane
Francis Mokoaela), Counts 1, 2 and 3, being murder, read with the
provisions of section 51(1), and Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
, as amended (“
the
Amendment Act
”);
as well as the unlawful possession of a firearm and accompanied
ammunition. Counts 4, 5 and 6, which is another
murder as well
as the unlawful possession of a firearm and accompanying ammunition.
Counts 7, 8, 9, 10, 11, 12 and 13 being
the unlawful possession of a
firearm, namely a Norinco 1 x 9 mm Calibre Semi-automatic Model 201C
Firearm (“
Count
7
”), as well as
the unlawful possession of ammunition, namely seven (7) 1 x 9 mm
calibre live round 1 (“
Count
8
”). Count
9 is the theft of a firearm, namely a 12 Gauge Calibre Model Muster
Pump gun Action Shotgun with serial number
AM 34077, as well as the
possession thereof (“
Count
10
”), and the
unlawful possession of the accompanying ammunition, namely four (4)
live rounds (“
Count
11
”). Count 12
is the unlawful possession of a firearm, namely a Norinco
semi-automatic firearm with serial number 666669, and
the
accompanying unlawful possession of ammunition, namely six (6) 1 x 9
mm live rounds (“
Count
13
”).
Count 15 is the attempted murder of Warrant Officer Msibi by shooting
at him on 1 June 2017, (“
Count
15
”). The final
count is Count 16, namely the robbery of Mr Thembelihle Mvelase
and/or Mr Christopher Tsingoane on 23 May 2017,
(“
Count
16
”).
(b)
Accused 2
(Setene Lei) was
found guilty of the above counts, namely Counts 1, 2, 3, 7, 8, 9, 10,
11, 12, 13, 15 and 16.
(c)
Accused 3
(Setlaba Lefa
Emmanuel) was found guilty of lesser counts above, namely Counts 7,
8, 9, 10, 11, 12, 13, 15 and 16.
(d)
Accused 4
(Morobi Thabiso)
was found guilty of the above counts, namely Counts 1, 2, 3, 7, 8, 9,
10, 11, 12, 13, 15 and 16.
[2] It is now my difficult but
necessary task to impose appropriate sentences in accordance with the
trite principles of sentencing,
having regard to all the relevant
circumstances and factors cumulatively.
[3] The starting point and of crucial
importance, are the respective personal circumstances of the accused,
which have been extensively
placed on record by their respective
legal representatives. I have had due regard to all the
personal circumstances, which
contain a commonality. In short,
accused 1 testified that he was born on 23 April 1992, which made him
about 25 years, at
the time of the offences. He is a Lesotho
national. His parents are still alive. He is the second born of
six (6) siblings.
He dropped out of school in Standard six (6)
in Lesotho. He is married, with an unemployed wife, and two (2)
minor
children, aged about 6 years and 3 years, respectively.
He is a breadwinner and supported his family. As a
self-employed
recycler of the crime scene, in Count 7, he used to
send to his family in Lesotho, the sum of about R3/4 000,00 per month
in good
times. He came to South Africa to seek employment. He
denies committing the present crimes, and therefore disputes the
convictions.
Importantly, he has no previous convictions.
[4] Accused 2, as well has no previous
convictions. He was born in 1985, in Maseru, Lesotho, and is
therefore about 33 years old.
He came to South Africa in 2011 to seek
employment. He is married with about three (3) minor children.
He supported
his family in Lesotho from his occupation as a
self-employed recycler at the mine dumping site mentioned in Count
7. He completed
Grade 12 (matric) in Lesotho during 2004.
The Court was urged upon to consider the role played by accused 2 in
the crimes.
Accused 3, Setlaba Lefa Emmanuel, testified in
mitigation of sentence. He too has no previous convictions.
He too was
born in Lesotho during July 1987, which means he was about
30 years at the time of the offences. His parents are still
alive.
He has two (2) siblings. He came to South Africa in
2012, after dropping out of school in Standard 3 (three). He is
married
with three (3) minor children and an unemployed wife in
Lesotho. He supported his family from his self-employed
occupation
as a recycler at the local mine dumping site. His
earnings varied from about R150,00 per day to R500,00. He too,
testified
that he was incorrectly convicted. He, like his co-accused,
has been in custody awaiting trial in this matter from the date of
arrest on 1 June 2017.
[5] Accused 4, testified in
mitigation. He too, was born in Maseru, Lesotho during March
1985, some 32 years ago. He
never went to school. He is an
orphan. He is married for the second time with four (4) minor
children. He supports
his family, and used to send some
R1 500,00 per quarter to Lesotho for his children’s school
fees. He also received
from his Government financial aid for
schooling. He came to South Africa in 2007, and worked in
construction before being
self-employed as a recycler at the dumping
site, where he earned about R350,00 per day in good times. He too,
denies complicity
in the present crimes. He has one unrelated
previous conviction under the
Immigration Act 13 of 2002
, for which
he had to be deported to Lesotho.
[6] There is no doubt that the various
offences committed by the accused are not only prevalent, but also of
a serious nature.
The latter was in fact readily conceded by
their counsel. There is therefore the compelling and justified
reason in the circumstances
of this matter to protect strongly, and
decisively, the interests of society by removing the accused from
society for a lengthy
period.
[7] There are several reasons for the
above determination. The murder Counts 1 (all accused), and
Count 4 (accused 1); the
robbery Count 16; and the attempted murder
count, Count 15, are all very serious offences. The seriousness
of the crimes
was accompanied by significant aggravation. In the
first place, the murders were gruesome, merciless, and committed
brazenly in
daylight. The mother of the deceased in Count 1,
testified how the murder affected the family, and the deceased’s
(39
years) minor children, aged 15, 10 and 4 years, respectively.
The 15 years old child has been affected mentally and attending
treatment such as counselling. Equally, the deceased in Count
4, was chased, cornered and brutally killed.
[8] In regard to the attempted murder
count, Count 15, Warrant Officer Msibi, was lucky to have escaped
unhurt. However, the
victims in Count 16, the robbery count,
were not so lucky. They were insulted, assaulted and harassed
in the safety of their
workplace. Some of them were still angry
and hostile towards the accused when they testified. The
deceased in Count
1 was a co-citizen with the accused persons.
What was worrisome in this matter was the ease with which the accused
gained
possession, jointly of exceedingly dangerous firearms, and
used so senseless on various victims.
[9] More aggravating, in the view of
the Court, was the blatant lack of remorse on the part of all the
accused. Some of them
displayed visible disrespect for the
Court, and officers for the Court. It was truly unnecessary.
The list of aggravating
circumstances was not exhaustive. In
closing argument, the Court went out of its way to invite counsel for
the accused to
assist the Court in point out possible substantial and
compelling circumstances, where applicable. None came to the
fore,
accept that the accused had no previous convictions, were
injured on arrest, and the ages of the accused. The latter
factor
is in fact a neutral factor since relative younger persons
also commit serious offences. (Compare for example,
S v Matyityi
2011 (1) SCR 40
(SCA).) In the judgment of the Court, the only
possible, and conceivable mitigating circumstances, are the clean
criminal
records of the accused, and to an extent, the period spent
in custody awaiting trial, which translates to about 1 year and 4
months
today. However, these factors must tritely be considered
with all other factors in sentencing. The sum total was that
cumulatively
considered, the mitigating factors that may be present,
are by far outweighed by the aggravating circumstances. Where
required,
there are simply no substantial and compelling
circumstances to be found in crimes carefully pre-planned, and
pre-meditated, and
carried out in common purpose, and common and
joint possession, where applicable in regard to firearms.
Murder is the most
serious offence for which a person can be
convicted, and the shooting of innocent persons, and police officers
with high calibre
firearms, for financial greed, cannot, and should
not, be condoned by the courts. The cumulative effect of the
sentences
to be imposed must be carefully considered here. There is
no reasonable probability that the accused may soon be rehabilitated,
especially in the light of their lack of visible remorse.
CONCLUSION
[10] I have considered all the
relevant circumstances, and factors to be taken into account in the
sentencing process. I sympathize
with the accused for leaving
their country of origin in pursuit of greener pastures in South
Africa. However, their destination
in such serious offences,
such as the present, cannot be countenanced by the courts. The
under-mentioned sentences are just
and appropriate.
ORDER
[11] The following order is made:
(a)
Accused 1
(Mopedinyane
Francis Mokoaela):
Count 1
(Murder) is sentenced to 20 years’ imprisonment.
Counts 2 and 3
,
taken together for sentencing purposes, is sentenced to ten (10)
years’ imprisonment.
Count 4
(Murder), is sentenced to life imprisonment.
Counts 5 and 6
,
taken together for purposes of sentence, is sentenced to ten (10)
years’ imprisonment.
Counts 7 and 8
(the unlawful possession of a Norinco 1 x 9 mm calibre semi-automatic
firearm, and the related unlawful of ammunition, the accused
is
sentenced to ten (10) years’ imprisonment.
Count 9
,
the theft of the 12 Gauge Calibre Pump Action Shotgun, and by virtue
of common purpose and joint possession, as well as the doctrine
of
recent possession, the accused is sentenced to five (5) years’
imprisonment.
Counts 10, 11, 12 and 13
,
the unlawful possession of the 12 Gauge Calibre Pump Action Shotgun,
with serial number AM 34077, the unlawful possession of the
ammunition thereof, and the unlawful possession of the Norinco pistol
semi-automatic firearm with serial number 666669, and the
accompanying unlawful possession of the ammunition thereof,
respectively, taken together for purposes of sentence, the accused
is
sentenced to 12 years’ imprisonment.
Count 15
,
the attempted murder of Warrant Officer Msibi, the accused is
sentenced to 8 years’ imprisonment.
Count 16
,
the robbery with aggravating circumstances, on 23 May 2017, the
accused is sentenced to 10 years’ imprisonment.
ORDER
– It is ordered that forty-five (45) years’ imprisonment
imposed in respect of Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, 11,
12, 13,
15 and 16, shall run concurrently with the sentence imposed in
respect of Count 4. The effective term of imprisonment
is
therefore: Imprisonment for life (Count 4) plus 40 years’
imprisonment.
(b)
Accused 2
(Setene Lei)
Count 1
,
murder, is sentenced to 20 years’ imprisonment.
Counts 2 and 3
,
taken together for purposes of sentence, is sentenced to 10 years’
imprisonment.
Counts 7 and 8
,
the unlawful possession of a Norinco 1 x 9 mm calibre, semi-automatic
firearm, and the related unlawful possession of ammunition,
the
accused is sentenced to 10 years’ imprisonment.
Count 9
,
the theft of the 12 Gauge Calibre Pump Action Shotgun, and by virtue
of common purpose, and joint possession, as well as the doctrine
of
recent possession, the accused is sentenced to five (5) years’
imprisonment.
Counts 10, 11, 12 and 13
,
the unlawful possession of the 12 Gauge Calibre Pump Action Shotgun,
with serial number 34077, the unlawful possession of the
ammunition
thereof, and the unlawful possession of the Norinco pistol,
semi-automatic firearm with serial number 666669, as well
as the
accompanying unlawful possession of the ammunition thereof,
respectively, taken together for the purposes of sentence, the
accused is sentenced to 12 years’ imprisonment.
Count 15
,
the attempted murder on Warrant Officer Msibi, the accused is
sentenced to 8 years’ imprisonment.
Count 16
,
the robbery with aggravating circumstances, on 23 May 2017, the
accused is sentenced to 10 years’ imprisonment.
ORDER
– It is ordered that forty-five (45) years’ imprisonment
imposed in respect of Counts 2, 3, 7, 8, 9, 10, 11, 12, 13,
15 and
16, shall run concurrently with the sentence imposed in respect of
Count 1. The effective term of imprisonment is
therefore 30
years’ imprisonment.
(c)
Accused 3
(Setlaba Lefa
Emmanuel)
Counts 7 and 8
,
the unlawful possession of a Norinco 1 x 9 mm calibre, semi-automatic
firearm, and the related unlawful possession of ammunition,
taken
together for the purposes of sentence, the accused is sentenced to 10
years’ imprisonment.
Count 9
,
the theft of the 12 Gauge Calibre Pump Action Shotgun, and based on
the principles of common purpose, and joint possession, the
accused
is sentenced to five (5) years’ imprisonment.
Counts 10, 11, 12 and 13
,
the unlawful possession of the 12 Gauge Calibre Pump Action Shotgun,
with serial number AM 34077, and the unlawful possession
of the
ammunition thereof, as well as the unlawful possession of the Norinco
pistol, semi-automatic firearm, with serial number
666669, and the
accompanying unlawful possession of the ammunition thereof,
respectively taken together for the purposes of sentence,
the accused
is sentenced to 12 years’ imprisonment.
Count 15
,
the attempted murder of Warrant Officer Msibi, the accused is
sentenced to 8 years’ imprisonment.
Count 16
,
the robbery with aggravating circumstances on 23 May 2017, the
accused is sentenced to 10 years’ imprisonment.
ORDER
– It is ordered that the sentences imposed in respect of Counts
9 and 16, shall run concurrently with the sentences imposed
in
respect of Counts 7, 8, 10, 11, 12, 13 and 15. The effective term of
imprisonment is therefore 30 years’ imprisonment.
(d)
Accused 4
(Morobi Thabiso)
Count 1
,
the accused is sentenced to 20 years’ imprisonment.
Counts 2 and 3
,
taken together for sentencing purposes, the accused is sentenced to
10 years’ imprisonment.
Counts 7 and 8
,
the unlawful possession of a Norinco 1 x 9 mm calibre, semi-automatic
firearm, as well as the accompanying unlawful possession
of the
ammunition thereof, the accused is sentenced to 10 years’
imprisonment.
Count 9
,
the theft of the 12 Gauge Calibre Pump Action Shotgun, and based on
the principles of common purpose, and joint possession, and
the
doctrine of recent possession, the accused is sentenced to five (5)
years’ imprisonment.
Counts 10, 11, 12 and 13
,
the unlawful possession of the 12 Gauge Calibre Pump Action Shotgun,
with serial number AM 34077, as well as the accompanying
unlawful
possession of the ammunition thereof, and the unlawful possession of
the Norinco pistol, semi-automatic firearm with serial
number 666669,
as well as the accompanying unlawful possession of the ammunition
thereof, respectively, and taken together for
the purposes of
sentence, the accused is sentenced to 12 years’ imprisonment.
Count 15
,
the attempted murder of Warrant Officer Msibi, the accused is
sentenced to 8 years’ imprisonment.
Count 16
,
the robbery with aggravating circumstances on 23 May 2017, the
accused is sentenced to 10 years’ imprisonment.
ORDER
– It is ordered that the sentences imposed in respect of Counts
2, 3, 7, 8, 9, 10, 11, 12, 13 and 15 shall run concurrently
with the
sentences imposed in respect of Counts 1 and 16. The effective
term of imprisonment is therefore 30 years’
imprisonment
.
________________________________________
D S S MOSHIDI
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel for accused 1 and
4
Adv V D T Nolutshungu
Instructed
by
Johannesburg Justice Centre
Counsel for accused
2
M Buthelezi
Instructed
by
Johannesburg Justice Centre
Counsel for accused
3
P Milubi
Instructed
by
Johannesburg Justice Centre
Counsel for the
State
J M Serepo
Instructed
by
DPP, Johannesburg
Date of
hearing
4/5 October 2018
Date
of judgment
26 October 2018