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[2018] ZAKZPHC 28
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S v Xaba and Others (CC48/2016) [2018] ZAKZPHC 28; 2018 (2) SACR 387 (KZP) (3 July 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CC48/2016
REPORTABLE
In
the matter between:
THE
STATE
v
MKHOMBI
XABA
Accused
1
THANDANANI
REFERENCE QHOBHA
DANISA
Accused
2
THABISILE
FORTUNATE
ZULU
Accused
3
BUHLE
NTOMBI
MTSHALI
Accused
4
SIMPHIWE
MEHONI
NDLELA
Accused
5
KHONZA
JEREMIYA
DLAMINI
Accused
6
HLEZIKALUKHUNI
MAPHISA
Accused
7
MUNTUKAFAKWA ALBERT
NDLELA
Accused
8
SENTENCE
Delivered:
03 July 2018
MBATHA
J
[1]
The
accused
were convicted of the murder of Mandla Sibiya (the deceased). Accused
8 was acquitted of murder but convicted of assault
with intent to do
grievous bodily harm in respect of the assault of Bathokozile Alexina
Zulu. The murder convictions fall within
the ambit of s 51(1) and
Part I of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
in
that:
(a)
The
murder was committed by a group of persons acting in the execution or
furtherance of a common purpose; and
(b)
The
death of the deceased resulted from, or is directly related to, any
offence contemplated in s 1
(a)
to
(e)
of the Witchcraft Suppression Act 3 of 1957.
A
court may deviate from imposing the prescribed minimum sentence if
there are substantial and compelling circumstances that are
persuasive enough and justify the court in doing so.
[2]
The personal circumstances of the accused have been placed on record
and I need not repeat them individually. I would however
like to
highlight that their ages range from 28 to 59 years and most are
unemployed or have lost their employment as a result of
their
incarceration pending the trial. All the accused, save for accused 3,
have been in custody pending trial since September
2015. The majority
of the accused reside in KwaCibilili ward with the remaining accused
residing in neighbouring wards falling
under the KwaNgenetsheni
Tribal Authority.
[3]
The accused are all married or in recognised customary law marriages,
save for accused 1, 2 and 5. Accused 1 has a four year
old daughter
who lives with her mother, accused 2 has a three year old daughter
who lives with her mother and accused 3 has a five
year old son who
lives with his mother.
[4]
Accused 6 is married and has seven children. Three are majors, two
are nineteen years old and in grade 12 and the youngest is
thirteen
years old. The school going children live with the accused’s
brother in Madadeni where they are attending school.
Only the
thirteen year old receives support in the form of a child grant.
[5]
Accused 7 is married to three wives and has ten children and ten
grandchildren. His youngest child is two years old. His first
wife is
deceased. Accused 8 is married with three children between the ages
of 14 to 18 years.
[6]
When the court was addressed on sentence by the legal representatives
of the accused, it became apparent that accused 3, 4 and
7 appeared
to be primary caregivers. The court requested that they give evidence
under oath only in respect of that aspect.
(a) Accused 3 stated that
she has a fifteen year old daughter at a boarding school in Vryheid
and that her daughter is an only child.
She further stated that her
young niece lives with her and is in grade 5 at a local school.
Though accused 3 lives with her husband
in their home, he is not
always at home. This meant that the two young children would return
to a home where there was no primary
caregiver if she was sentenced
to imprisonment.
(b) Accused 4 is married
and informed the court that she has three daughters. The youngest,
who is twenty years old, suffers from
epilepsy and she is responsible
for her wellbeing.
(c) Accused 7 is married
to three women. One of his wives, Ma Sibisi, died whilst the accused
was in custody awaiting trial. It
was not clear to the court as to
who was responsible for the welfare of the deceased wife’s
children.
[7]
Due to the inconclusive nature of this evidence, the court felt
enjoined to follow the judgment of the Constitutional Court
in
M
v S
(Centre
for Child Law as Amicus Curiae)
,
[1]
where the court stated that ‘[i]n matters concerning children
it is important that courts be furnished with the best quality
of
information that can reasonably be obtained’. This court
therefore requested that probation officer reports on the
circumstances
of the aforementioned accused and their children be
compiled and reported to the court.
[8]
The first reports submitted by the probation officer were inadequate
and as such, sentencing had to be adjourned for further
reports.
These reports have since been filed and the following information has
been extracted therefrom:
(a) The probation
officer’s report in respect of accused 3 reveals that she has
three children. Two of her children have always
lived with her mother
at her maternal home. Accused 3 is married and has a daughter with
her husband who is at a boarding school
in Vryheid. Her niece attends
a local school. The report states that the child T will have to be
placed in the care of accused
3’s maternal aunt should she
receive a custodial sentence.
(b) With regard to
accused 4, two of her daughters live with her maternal family. The
youngest, T, who is 22 years old and suffers
from epilepsy has been
living with accused 4’s maternal grandmother since her arrest.
The report revealed that she is the
primary caregiver to Thandeka.
(c) Accused 7 had three
wives, however Ma Sibisi passed away in 2016 whilst he was in
custody. She left behind three adult children
and three
grandchildren. Ma Khumalo has two minor children and Ma Msezane has
five adult children and five grandchildren. The report
reveals that
accused 7 is responsible for the maintenance of his children and the
grandchildren. However, he is not a primary caregiver
to MaSibisi’s
children as they are adults.
[9]
The court accepts that accused 3 and 4 are primary caregivers. When
considering sentence where a primary caregiver may be sentenced
to a
custodial sentence, the court is enjoined to pay attention to the
constitutional provisions of s 28 of the Constitution. I
will return
to this aspect later in my judgment.
[10]
When considering sentence in general, courts are required to consider
the guiding principles enumerated in the well-known judgment
of
S
v Zinn
,
[2]
commonly referred to as the
Zinn
triad.
The court has to consider the crime, the offender and the interests
of society. This means taking into account the seriousness
of the
offence, the personal circumstances of the offender and the public’s
interest. The court also has to consider the
aims of sentencing being
general deterrence, personal deterrence, retribution and
rehabilitation of the offender.
[11]
The provisions of the
Criminal Law Amendment Act must
also be taken
into account, as the accused have been convicted of a crime which
prescribes a minimum sentence of imprisonment.
The approach to be
adopted in this regard is clearly set out in
S
v Malgas
:
[3]
‘
What stands out quite clearly
is that the courts are a good deal freer to depart from the
prescribed sentences than has been supposed
in some of the previously
decided cases and that it is they who are to judge whether or not the
circumstances of any particular
case are such as to justify a
departure. However, in doing so, they are to respect, and not
merely pay lip service to, the
Legislature's view that the prescribed
periods of imprisonment are to be taken to be ordinarily appropriate
when crimes of the
specified kind are committed.’
[12]
In determining whether substantial and compelling circumstances
exist, the following factors have been submitted by counsel
for the
accused: The accused are respected members of the community; they
have families and are responsible for the wellbeing of
their
families; they are all first offenders except for accused 1 who has
two previous convictions for assault, and, they have
spent almost two
and a half years in custody awaiting trial, except for accused 3 who
was released due to ill-health.
[13]
It is my opinion that the deceased would never have been killed had
Induna Mtshali adhered to the law. Induna Mtshali called
a meeting
wherein community members were requested to make monetary
contributions for him and his delegation to visit an isangoma
in
Swaziland. This was as a result of the police’s finding that no
one was responsible for the death of Malibongwe Ndlela,
a child from
the community, whose body was found hanged in the veld. His death was
subsequently ruled a suicide. The collection
of money from the
community members made them feel a part of the fact finding mission
to Swaziland and they assumed that it gave
them a right to dispense
justice as they wished.
[14]
When Induna Mtshali returned from Swaziland, he did not advise the
police as to what had been discovered. Instead he convened
another
community meeting and merely informed the police that this meeting
was about the Ndlela child. He did not specify to the
police that he
was in fact going to disclose the names of the alleged killers of the
Ndlela child, whom it was believed had been
killed for witchcraft
purposes. Induna Mtshali should have known that by so doing he was
placing the lives of the alleged killers
in jeopardy. The entire
community of Cibilili and neighbouring communities were invited to
attend the meeting. This was no ordinary
meeting as minutes were
taken regarding the conduct of the meeting. The minutes revealed that
the alleged culprits were named including
the deceased. It did not
end there as the deceased was called forward to answer the
allegations against him and was subjected to
a trial by mob. When
Induna Mtshali was called as a witness by the State, he told the
court that he did not know what had happened
at the meeting. It is my
view that Induna Mtshali should not have convened any meeting in
order to find the killers of the Ndlela
child through the use of an
isangoma, should not have led the delegation to Swaziland and should
not have convened the meeting
where the alleged killers were
disclosed to the community.
[15]
Induna Mtshali is not authorised by any law to “sniff out”
culprits nor does he have any criminal law jurisdiction
to deal with
any criminal offenders in the community. In the book
The
role of traditional courts in the justice system
[4]
Madondo DJP states that even during the tenure of the Black
Administration Act 38 of 1927, the position with regard to
traditional
leaders was as follows:
‘
The jurisdiction of the
traditional courts is limited with regard to the nature and extent of
punishment that they may impose. Such
a court may impose fines not
exceeding R100 or two head of large stock or ten head of small stock.
See s 20(2) of the Black
Administration Act.
’
Furthermore,
s 17(1) of KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990 read
with the First Schedule of the Act states the offences
that may not
be tried by an Inkosi or Isiphakanyiswa. As such, Chiefs and Indunas
do not have criminal jurisdiction in such matters,
which includes
murder, as in this case, where the deceased was accused of having
killed the Ndlela child for witchcraft purposes.
[16]
In
S v
Dalindyebo
[5]
the SCA held that ‘[w]e are a constitutional democracy in which
everyone is accountable and where the most vulnerable are
entitled to
protection’. This judgment reaffirms the judgment in
S
v Makwanyane & another
[6]
where O’Regan J stated as follows:
‘
. . .the right to life was
included in the Constitution not simply to enshrine the right to
existence. It is not life as mere organic
matter that the
Constitution cherishes, but the right to human life: the right to
live as a human being, to be part of a broader
community, to share in
the experience of humanity. This concept of human life is at the
centre of our constitutional values. .
.’
[17]
The
Traditional Leadership and Governance Framework Act 41 of 2003
provides that traditional leadership must promote freedom, human
dignity and the achievement of equality and non-sexism. Traditional
leadership must enhance harmony and peace amongst people. Induna
Mtshali failed to comply with this Act. He knew very well what
was
going to happen to the deceased, yet he did not request police
support, save for the mandatory compliance that police officers
be
present. I therefore place the blame for the deceased’s death
squarely on his shoulders. As such, he should have been
prosecuted in
terms of s 1 of the Witchcraft Suppression Act. Induna Mtshali does
not have the powers to hold a “criminal”
trial in the
guise of a meeting in terms of the KwaZulu-Natal Traditional
Leadership and Governance Act 5 of 2005.
[18]
Induna Mtshali acted contrary to Zulu Law and culture. The objective
of customary law is to attain restorative justice. As
stated by
Madondo DJP in
The role of traditional courts in the justice
system
:
‘
In pursuit to such an
objective, restorative justice encourages dialogue between the
offender and the victim, and facilitates the
healing process. It
achieves this objective by allowing the offender, the victim, their
families and community representatives
to address the harm caused by
the offender’s wrongdoing.’
[7]
Even
during the reign of the old Zulu Kings, it was only the King who had
powers to order capital punishment for serious offences,
not an
Induna or individual person.
[19]
It has been submitted on behalf of the accused that the belief in
witchcraft is very strong in the community. This theatrical
belief is
often used by the people as an excuse for their criminal conduct. It
is common knowledge that King Shaka and King Cetshwayo
discouraged
the use of izangoma as it encouraged the killing of innocent people.
The Witchcraft Suppression Act was enacted to
combat witchcraft
practices in 1957. The purpose of the Act is to provide for the
suppression of the practice of witchcraft and
similar practices and
applies to various categories of offenders, including any person who
approaches a witchdoctor and hires him
or her for the process of
“smelling out” of a witch and any person who names or
indicates another person as a witch
or wizard.
[8]
This indicates that Induna Mtshali and the community had acted
contrary to the law.
[20]
It has been further submitted by counsel for the accused that the
subjective belief in witchcraft should be viewed or considered
as a
mitigating factor. I have been referred to a number of authorities
where witchcraft was regarded as a mitigating factor including
R
v Biyana
,
[9]
R v
Fundakubi & others
[10]
and
S v
Nxele
[11]
to indicate that the belief in witchcraft in the area should be taken
as a mitigating factor. In
R
v Fundakubi
the
court stated as follows:
‘
But it is at least clear that
the subjective side is of very great importance, and that no factor,
not too remote or too faintly
or indirectly related to the commission
of the crime, which bears upon the accused's moral blameworthiness in
committing it, can
be ruled out from consideration. That a belief in
witchcraft is a factor which does materially bear upon the accused's
blameworthiness
I have no doubt. . . .’
[12]
[21]
In more recent judgments such as
S
v Malaza
,
[13]
S v
Phama
[14]
and
S v
Latha & another
,
[15]
there has been a shift in the view that witchcraft should be
considered as a mitigating factor based purely on that belief. It
must be coupled with other factors, like acting under the influence
of mob hysteria. However, it does not exonerate the accused
from
their actions. As early as the late 1940’s the courts realised
that these crimes needed to be curtailed. In
R
v
Fundakubi
,
the court held that the deterrence factor should prevail more in
sentencing on those found guilty of witchcraft practices and
that
excessive leniency be avoided.
[16]
The shift has been more pronounced in cases post the advent of the
Constitution. In
S
v Lukhwa en ‘n ander
[17]
the death penalty was commuted to life imprisonment. In
S
v Motsepa en ‘n ander
[18]
the accused was sentenced to twenty two (22) years’
imprisonment and in
S
v Latha
[19]
the accused were sentenced to fifteen (15) years’ imprisonment.
[22]
The question which arises is whether the belief in witchcraft should
still be considered as a mitigating factor at this stage
of our lives
where s 11 of the Bill of Rights recognises that everyone has a right
to life? In
S
v Ndhlovu & another
[20]
the court recognised that besides the subjective belief in
witchcraft, certain factors need to be considered such as the level
of education of the accused, relationships, if the crime was
committed as part of a group, and, the primitive and rural background
of such person. And that if the crime is committed with excessive
cruelty, this should negate the mitigating factor. In
S
v Motsepa
above,
Kriegler JA imposed a sentence of twenty two (22) years imprisonment
which was considered to be an effective deterrent sentence.
The basic
principles being that each case has to be judged on its merits in
consideration of whether the belief in witchcraft has
any merit on
the offenders’ blameworthiness.
[23]
The fact that the law has placed such witchcraft offences under the
Criminal Law Amendment Act, is
an indication that the law is becoming
increasingly less tolerant of the belief in witchcraft constituting a
mitigating factor.
The belief in witchcraft has been treated in the
post constitutional dispensation as being of a lessor mitigating
factor. I agree
that a belief in witchcraft should not be considered
as a mitigating factor at all. Some of the accused before court are
educated,
having attended high school. Those without a formal
education have been exposed to religion. Furthermore, despite living
in rural
areas, the accused are aware that there is a legal system in
the land.
[24]
I do accept that in this case the belief in witchcraft played a part,
but only to a very limited extent. It was aggravated
by the
involvement of the leadership who were in the forefront of “sniffing
out the witch”. The role and involvement
of Induna Mtshali gave
the process credibility in the eyes of the community. A mob euphoria
and excitement was created by the delivery
of the outcome of
“umhlahlo” (the naming the culprits by isangoma) which
was sanctioned and supported by the Induna.
[25]
The accuseds’ personal circumstances should not be looked at in
isolation. One must also consider the aggravating factors.
In this
matter, the accused attended the meeting called for by the Induna
armed with dangerous weapons such as cane knives, knobkerries
and
other weapons, which were used to kill the deceased. They failed to
heed the Induna’s call to put dangerous weapons away.
The
deceased was killed in the most brutal, barbaric and horrific way by
members of his community. He was stoned, hacked with cane
knives and
an attempt was even made to burn him whilst he was alive. The trauma
suffered by the deceased’s family was palpable
when the
deceased’s mother testified in this court. The court vividly
recalls the haunting wails of the deceased’s
mother as she
testified about the effect the killing of the deceased has had on her
entire family. The deceased was killed by people
who lived with him
for no apparent reason. This was vigilantism at its worst form.
[26]
A strong deterrent message must go out to those who wish to take the
law into their hands, that vigilantism will not be tolerated.
The
KwaNgenetsheni Tribal Authority community is warned that the killing
of a person in the belief that they are bewitched will
result in
imprisonment. The court will give sentences that will not only be
regarded as a general deterrent to the community but
as a deterrent
to the accused as well, which will deter them from committing such
crimes in the future.
[27]
Having said all the above I have also had regard to the personal
circumstances of all the accused. The accused were all law
abiding
citizens until the day of the meeting, save for accused 1 who has two
previous convictions for assault. They all come from
stable family
backgrounds, they are breadwinners and some are primary caregivers.
The accused have also professed to be practicing
Christians. I have
also taken into account the time that they have spent in custody as
well as the role played by Induna Mtshali.
[28]
In respect of those that I have found to be primary caregivers, I
considered the provisions of
s 28(2)
read with s 28(1)
(b)
of the Constitution. I have accepted the probation officer’s
reports which confirmed that accused 3 and 4 are primary caregivers,
in spite of the fact that their extended families have stepped in to
care for their children. I have also considered that all the
accused
are breadwinners and parents to children who are dependent on them.
[29]
In addition to the above, I have also considered the degrees of
participation in the killing of the deceased by each of the
accused
before court. In this regard I have applied the determinative test
espoused by Nugent JA in
S
v Vilakazi
[21]
where he states as follows:
‘
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 needs of
society, so that an injustice would
be done by imposing that
sentence, it is entitled to impose a lesser sentence.’
(Footnote omitted)
The
purpose of sentence for convictions arising from vigilantism is
deterrence. This has to be carefully balanced with regard to
the
interests of the offender. It is my view that this was an act of
vigilantism which the courts have emphasised that it needs
to be
discouraged at all costs. It does not serve the interests of justice
in making the making the offender an example but courts
have
encouraged that a sentence comprising of all the elements as
enshrined in the
Zinn
triad be imposed on such offenders.
[30]
Accused 3, 4, 6 and 7 did not inflict the deceased’s fatal
injuries although they were the first ones to participate
in the
attack. Their roles were minimal and caused relatively minimal harm
to the deceased as he managed to get up and run away.
The court has
also taken into account that accused 3 and 4 are primary caregivers.
The court further observed that accused 3 and
4 showed compassion to
the deceased’s mother when she testified in this court, which I
consider to be a sign of remorse.
Accused 6 and 7 are of an advanced
age, namely 60 and 58 years respectively, they are first-time
offenders and have led a relatively
innocent life. Accused 3, 4, 6
and 7 fall within the group of offenders who do not need to be
removed from society but nonetheless
need to be punished.
[22]
This court has approached the sentencing of all the accused with
mercy as stated in
S
v Rabie,
[23]
where the court emphasised that the imposition of sentence should be
approached with a ‘humane and compassionate understanding
for
human frailties and the pressure of society which contribute to
criminality’.
[31]
The provisions of
s 276
of the
Criminal Procedure Act 51 of 1977
provide for various sentencing options. In consideration of sentence
in respect of accused 3, 4, 6 and 7, this court has considered
all
possible sentencing options, including
s 276(1)
(i)
,
taking into account the seriousness of the offence committed. Having
found that there are substantial and compelling circumstances
persuading this court to depart from imposing the prescribed minimum
sentence, I find that any kind of custodial sentence will
not serve
the interests of justice. I have also considered correctional
supervision as a possible sentencing option in respect
of accused 3,
4, 6 and 7, which is a community based sentence. The value of
correctional supervision as a corrective measure cannot
be
overemphasised. However, taking into account that the aforementioned
accused have already spent a considerable time in custody,
that
accused 3 suffers from major depression and hypertension, and that
they suffered as a result of their pre-trial incarceration,
I am of
the opinion that they are not candidates for such a sentence. Taking
these factors together with the other factors which
I have alluded to
into account, it is my view that accused 3, 4, 6 and 7 should not
receive any further custodial sentences. Correctional
supervision
will also overburden them.
[32]
Accused 8 was convicted
of assault with intent to do grievous bodily harm. I have taken into
account that he has been in custody
for over two years whilst
awaiting trial and that the complainant did not sustain very serious
injuries. Though he was in the forefront
in the witchcraft hunt, he
did not assault the deceased. I therefore find that the time he has
already served in custody is sufficient
for the conviction of assault
with grievous bodily harm.
[33]
Regarding the other accused, accused 1’s actions, namely
tripping the fleeing deceased, striking him with a cane knife
on top
of his head, a blow which brought the deceased down and trying to set
him alight contributed extensively to the death of
the deceased.
Accused 2’s actions in striking the deceased on the head with a
cane knife as he tried to get up, also significantly
contributed to
the death of the deceased. Accused 5, who struck the deceased with a
cane knife on his upper arm and cut off two
fingers from his left
hand, also extensively contributed to the death of the deceased.
These injuries are consistent with the injuries
in the medical report
that led to the death of the deceased. The State witnesses testified
that accused 1 and 2 hid their cane
knives when the Induna ordered
that dangerous weapons be placed aside, which I consider to be an
indication of intent to inflict
harm with a dangerous weapon. Accused
1, 2 and 5 delivered the fatal blows to the deceased. Having
considered all the relevant
facts in this matter, the court is
persuaded that there are substantial and compelling circumstances
justifying its departure from
imposing the prescribed minimum
sentence for life imprisonment.
[34]
Accordingly, I make the following order:
(a) Accused 3, 4, 6 and 7
are sentenced to three (3) years’ imprisonment, wholly
suspended for a period of five (5) years
on condition that they are
not convicted of any offence involving assault during the period of
suspension.
(b) Accused 8 is
cautioned and discharged.
(c) Accused 1, 2 and 5
are sentenced to twelve (12) years’ imprisonment.
___________________
Mbatha
J
APPEARANCES
FOR
THE STATE:
ADV ES MAGWAZA
FOR
ACCUSED 1 – 3:
MR RJ SIVNARAIN
FOR
ACCUSED 4:
MR VE NGWENYA
FOR
ACCUSED 5, 7 & 8:
MR TJ BOTHA
FOR
ACCUSED 6:
MR DR LATCHMAN
[1]
M v S
(Centre for Child Law as
Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA
232
(CC) para 9.
[2]
S v Zinn
1969 (2) SA 537 (A).
[3]
S v Malgas
2001 (2) SA 1222
(SCA) para 25.
[4]
M I Madondo
The
role of traditional courts in the justice system
(2017) at 43 para 87.
[5]
S v Dalindyebo
2016 (1) SACR 329
(SCA) para 59.
[6]
S v Makwanyane & another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) para 326.
[7]
Madondo
The
role of traditional courts in the justice system
above at 7 para 10.
[8]
See s 1 of the Witchcraft Suppression
Act.
[9]
R v Biyana
1938 EDL 310.
[10]
R v Fundakubi & others
1948 (3) SA 810 (A).
[11]
S v Nxele
1973 (3) SA 753
(A).
[12]
R v Fundakubi
above
at 818.
[13]
S v Malaza
1990 (1) SACR 357 (A)
[14]
S v Phama
1997
(1) SACR 485 (E).
[15]
S v Latha & another
2012 (2) SACR 30
(ECG).
[16]
R v Fundakubi
above
at 819.
[17]
S v Lukhwa en ‘n ander
1994 (1) SACR 53 (A).
[18]
S v Motsepa en ‘n ander
1991
(2) SACR 462 (A).
[19]
S v Latha
above.
[20]
S v Ndhlovu & another
1971 (1) SA 27 (RA).
[21]
S v Vilakazi
2009 (1) SACR 552
(SCA) para 14.
[22]
S v R
1993 (1) SACR 209 (A).
[23]
S v Rabie
1975 (4) SA 855
(A) at 866B-C.