S v Soni (CC29/14P) [2018] ZAKZPHC 74 (26 October 2018)

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[2018] ZAKZPHC 74
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S v Soni (CC29/14P) [2018] ZAKZPHC 74 (26 October 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU–NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. CC 29/14P
In
the matter between:
THE
STATE
versus
RAJIVEE
SONI

THE ACCUSED
J U D G M E N T
O N   S E N T E N C E
HENRIQUES J
Introduction
[1]
This matter has garnered much publicity both in the print and
electronic media.
It has been described as a ‘legal soap
opera’.  The use of these words in my view, whilst it may
help in selling
newspapers, detracts from the seriousness of the
offences and the impact these events have had on the family of the
deceased, particularly
his elderly parents, two daughters and on the
family of the accused, particularly his son and daughter.
[2]
The accused was convicted on the following counts:
(a)
Count 1 - the murder of Bhavish Sewram (the deceased) committed in
circumstances contemplated
in s 51 Part I of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (‘the CLAA’), as
the State proved the offence
was planned and premeditated, and that
the accused conspired with and formed a common purpose with, inter
alia, Sugen Naidoo (Naidoo),
Brian Treasurer (Treasurer), Sabelo
Advocate Dlamini (Dlamini) and Mfaniseni Wiseman Nxumalo (Nxumalo);
(b)
Counts 2, 3 and 4 - defeating and obstructing the course of justice;
(c)
Count 5 - assault with intent to cause grievous bodily harm; and
(d)
Count 6 - Conspiracy to commit murder.
[3]
It is common cause that in terms of the CLAA, the prescribed minimum
sentence on count
1 is that of life imprisonment. In securing
convictions against the accused, the State proved that the accused
conspired with and
formed a common purpose with others and embarked
on a campaign involving a number of schemes, being counts 2 to 5, to
embarrass,
humiliate and denigrate the deceased in the hope that this
would eventually drive the deceased and his family from
Pietermaritzburg.
When these schemes failed, he conspired and
formed a common purpose with others to kill the deceased (counts 1
and 6). The accused’s
apparent motive for this and the reason
for his conduct, was as he believed the deceased and his wife,
Kerusha Soni (Kerusha),
had engaged in an extra-marital affair.
[4]
The transcript of these proceedings as
well as the s 115 plea of the accused, indicated that
the accused
forgave his wife for the alleged affair and they reconciled.  As
a consequence of their reconciliation, their
second child, Ariv, was
conceived.  Given that the deceased and his family were close
friends of the accused and that they
enjoyed the same social circle,
a ‘peace meeting’ was arranged between the family of the
deceased and that of the accused.
According to the accused at such
‘peace meeting’ the deceased apologised to him for his
conduct and they ‘buried
the hatchet’ and reconciled
their friendship. Although their friendship was not the same as
before, according to the accused
they were civil and cordial to each
other and there were no hard feelings. This defence was advanced to
answer the State’s
allegations of the apparent motive for the
accused’s conduct.
[5]
Imposing sentence is one of the most difficult tasks
[1]
which a presiding officer has to grapple with. It has been described
as a ‘painfully difficult problem’
[2]
and it involves a careful and dispassionate consideration of all
factors. The court must consider the factors referred to in
S
v Zinn
[3]
being the interests of society, the personal circumstances of the
accused and the nature of the offences that have been committed.
The
court must also consider the recognised objectives of sentencing
being prevention, rehabilitation, deterrence and retribution.
[6]
The seriousness of the offences, the circumstances under which they
were committed
and the victim are also relevant factors in respect of
the last element of the triad.  The personal circumstances of
the accused
including his age, education, dependants, his previous
convictions, if any, his employment and other relevant conduct or
activities
call for consideration in respect of the second element.
An appropriate sentence should also have regard to or serve the
interests
of society, as the first element of the
Zinn
triad,
which is the protection of society’s needs, and the deterrence
of would-be criminals.
Issues
[7]
The issues which concern me at this stage of the proceedings are the
following namely:
(a)
In respect of count 1, whether to impose the prescribed minimum
sentence of life imprisonment.
The defence submitting that there are
substantial and compelling circumstances as contemplated in s 51(3)
of the CLAA warranting
a deviation from such sentence, namely that
this was a crime of passion coupled with the fact that the accused is
the primary caregiver
of his daughter, Sonali; and
(b)
Secondly in respect of counts 2 to 6, the appropriate sentences to be
imposed.
I
propose to deal firstly with the provisions of the
Criminal Law
Amendment Act.
The
Criminal Law
Amendment Act
[8
]
The minimum sentences have been ordained to be the sentences that
must ordinarily be
imposed unless the court finds substantial and
compelling circumstances which justify a departure therefrom.
[4]
In addition, the Supreme Court of Appeal (SCA) has indicated that the
minimum sentences must not be departed from for ‘flimsy

reasons’ and is the starting point when imposing sentence.
[9]
In terms of
Malgas
, in the event of substantial and compelling
circumstances not existing, then a sentencing court is entitled to
depart from imposing
the prescribed minimum sentences, if it is of
the view that having regard to the nature of the offence, the
personal circumstances
of the accused, and the interests of society,
it would be disproportionate and unjust to do so. This is often
referred to as the
proportionality test.
Substantial
and compelling circumstances
[10]
What is meant by substantial and compelling circumstance? Our courts
have not attempted to define
what is meant by substantial and
compelling circumstances. This is in keeping with the principle that
the imposition of sentence
is pre-eminently the domain of a
sentencing court. A court must consider all the circumstances of the
case, including the many
factors traditionally taken into account by
courts when sentencing offenders.
[11]
When sentencing an accused person, a court has to evaluate all the
evidence including the mitigating
and aggravating factors to decide
whether substantial and compelling circumstances exist. A court must
be conscious of the fact
that the legislature has ordained a
particular sentence for such an offence and there must be convincing
reasons to depart therefrom,
which reasons must be stipulated on the
record.
[12]
For circumstances to qualify as substantial and compelling, they need
not be ‘exceptional’
in the sense that they are seldom
encountered or rare, nor are they limited to those which diminish the
moral guilt of the offender.
Where a court is convinced, that after
consideration of all the factors, an injustice would occur if the
minimum sentence is imposed,
then it can characterise such factors as
constituting substantial and compelling circumstances and deviate
from imposing the prescribed
minimum sentence.
[13]
In
S v
Vilakazi
[5]
the court explained that particular factors, whether aggravating or
mitigating, should not be considered individually and in isolation
as
substantial or compelling circumstances. Ultimately, in deciding
whether substantial and compelling circumstances exist, one
must look
at traditional mitigating and aggravating factors and consider the
cumulative effect thereof. When sentencing, a court
takes into
account the personal circumstances of an accused. However, only some
of these carry sufficient weight to tip the scales
in favour of the
accused to impact on the sentence to be imposed. Often the fact that
the accused is young and is a first offender
has the effect of
reducing a sentence as there is potential for the offender not to
repeat the crime and be rehabilitated.
Mitigating
and aggravating circumstances
[14]
SS Terblanche in the book
The
Guide to Sentencing in South Africa
3
ed (2016) at 209 describes mitigating and aggravating circumstances
as those which present during and after the commission of
a crime
which may influence the sentence.  There is no generally
applicable list of mitigating and aggravating factors and
whether a
factor is mitigating or aggravating is determined by the presiding
officer in each particular case when imposing a sentence.
In
S
v Ramba
[6]
the court indicated that aggravating and mitigating factors are all
these factors which a court can properly take into account
in
aggravation or mitigation of sentence.
[15]
The passing of sentence often requires ‘balancing’ of
mitigating and aggravating
factors and requires a sufficient amount
of weight to be attached to each of these factors. It may often occur
that aggravating
factors might outweigh the mitigating factors even
to the extent that mitigating factors have no effect on the sentence,
such as
when life imprisonment is imposed. A party wishing to rely on
a mitigating factor must provide sufficient factual basis for that
by
producing evidence to satisfy the court that the mitigating factors
justify a departure from the prescribed minimum sentence.
[16]
The accused elected not to testify in mitigation of sentence
but Messrs
Van Schalkwyk SC
and
Howse
made submissions
from the bar, to be considered by the court when determining an
appropriate sentence and which they argued should
be regarded as
substantial and compelling circumstances, warranting a deviation from
the prescribed minimum sentence on count 1.
[17]
The accused, through his legal representatives, indicated that there
was no need to present evidence.
In addition, by consent between the
State and the defence, various exhibits were handed in during the
sentencing stage of the proceedings.
These are exhibit ‘LLLL’,
the victim impact statement of the deceased’s father, Mr
Parmanand Sewram; exhibit
‘MMMM’, the defence documents
in support of the substantial and compelling circumstances, and
exhibit ‘NNNN’,
the letter of endorsement from the Family
Advocate in the divorce proceedings date stamped 28 November 2017. It
was recorded by
consent that the collateral information contained in
such exhibits was admitted and not disputed. In essence the accused
submitted
that substantial and compelling circumstances existed
warranting a departure from imposing the prescribed minimum sentence.
In
support of this he relied on the fact that he was the primary
caregiver in respect of Sonali and the financial primary caregiver
in
respect of Ariv. This will be dealt with later on in the judgment.
[18]
The approach adopted by Mr
Van Schalkwyk
SC
and Mr
Howse
was to divide their submissions on sentence, Mr
Howse
dealing with the factual submissions and Mr
Van Schalkwyk SC
dealing with the legal principles and the case authorities.
Written submissions on sentence dealing with the legal principles

were handed in by Mr
Van Schalkwyk SC,
which I found helpful.
[19]
The factual matrix upon which the defence relied were the facts found
proven by the court, having
regard to the judgment on conviction, the
facts accepted by the State in the address in mitigation and those
contained in the defence
bundle.
[20]
Several authorities were relied on for the submission that it was in
order for the accused to
make submissions from the bar in relation to
sentence and in the event of the State disputing them or contesting
them, the State
was obliged to lead evidence in rebuttal,
alternatively
to give the accused fair warning that it objects to the factual
matrix submitted by him to enable the accused to make a decision
to
testify on oath,
alternatively
in keeping with the accused’s fair trial rights that he was
aware that the failure to testify would be accompanied by the
risk of
certain of these submissions being rejected.
[7]
[21]
Mr
Du Toit
, on behalf of the State, during the sentencing
proceedings, apart from handing in exhibit ‘LLLL’, the
victim impact
statement of the deceased’s father, likewise, led
no evidence and elected to make submissions from the bar. I shall now
deal
with all the evidence and the submissions made by the parties
during the sentencing proceedings and consider these and the triad
of
Zinn
in deciding the issues.
I
propose to deal firstly with the personal circumstances of the
accused.
The
offender: The personal circumstances of the accused
[22]
The accused is currently 42 years of age and it was submitted is
generally a law-abiding citizen.
The incidents, it was submitted,
were precipitated by difficulties in his marriage and the crimes
committed fell within the ambit
of such difficulties. He is therefore
not a danger to society. He grew up in a staunch, conservative Hindu
family, is a productive
person and an asset to society. He has four
sisters and his mother is still alive. She is currently 73 years of
age and lives directly
next door to him. She underwent triple heart
bypass surgery in 2016 and is not in good health.  The accused
oversees the building
which his mother owns and which provides her
with her only source of income. It was also submitted that as a
consequence of the
accused being incarcerated, his nephew would have
to abandon his studies to run the building for the accused’s
mother and
also the accused’s business.
[23]
The accused has for the past 10 years consulted with Dr Sanjay
Maharaj, a cardiologist. He has
been diagnosed with hypertension and
non-occlusive coronary disease. Mr
Howse
submitted that at present such diagnosis is not life-threatening but
it is potentially problematic given the family history and

considering the circumstances under which the accused’s father
died.
[8]
In addition, the
accused suffers from depression and is on medication. In prison he
may not have access to the same medication
such as what he is being
prescribed now.
[24]
The accused was married to Kerusha Soni on 25 March 2006 for
approximately 11 years until their
divorce on 8 December 2017. The
marriage had its difficulties which were compounded as a consequence
of the alleged relationship
between Kerusha and the deceased and the
subsequent criminal trial. The accused testified about this. In the
divorce proceedings
the parties concluded a settlement agreement,
specifically relating to their two minor children.
[25]
The settlement agreement which was concluded between the parties and
signed on 25 November 2017
was considered by the Family Advocate’s
offices. The relevance of same relates to the minor children borne of
the marriage,
Sonali Soni, a girl born on 18 December 2006 and Ariv
Soni, a boy born on 13 December 2013. In terms of the final order of
divorce,
[9]
the accused and his
wife were declared co-holders of full parental responsibilities and
rights as contemplated in
s 18(1)
and
18
(2) of the Children’s
Act 38 of 2005. Sonali would reside primarily with the accused and
Ariv’s primary residence was
that of Kerusha.
[26]
The letter of endorsement from the Family Advocate
[10]
reads as follows:
‘
The
Family Advocate does not endorse the separation of minor siblings.
However, this has been an established care regime over a
period of
time. The Family Advocate therefore endorses the Settlement Agreement
pertaining to the manner in which the parties shall
exercise their
Parental Responsibilities and Rights, regarding their children.’
[27]
Mr
Howse
,
relying on exhibit ‘MMMM’, submitted that the accused
provides all the financial support in respect of the children
and
pays all their educational and medical expenses. This was the
position even prior to the divorce.
[11]
To substantiate that the accused pays for all the expenses of the
minor children, extracts of bank statements confirming payments
made
to St John’s Diocesen School, St Charles College and a letter
from Discovery
[12]
was put up
in support of the contributions made to a medical aid scheme in
respect of himself and the two minor children. In addition,
medical
expenses not covered by the medical aid were also paid for by the
accused.
[28]
It was further submitted that apart from the educational and medical
expenses, the accused also
contributes to all other monthly expenses
of the minor children which averages approximately R5 000 per
month per child. Mr
Howse,
informed the court that he was
reliably instructed that Kerusha was not able to meet their expenses
and if the children were required
to primarily reside with her and
the accused was incarcerated, he would no longer be able to maintain
the children in the lifestyle
that they have become accustomed to. No
further facts were placed before the court in support of this
submission.
[29]
He submitted that this would have not only a severe financial impact
on their lives, but would
also affect them dramatically emotionally.
He indicated the accused was the primary caregiver of Sonali and
primary financial caregiver
in respect of Ariv.  Although Mrs
Soni is able to take care of the minor children, she is not able to
do so financially and
consequently the accused’s incarceration
will drastically affect the children and have a dramatic effect on
all their lives.
This constitutes substantial and compelling
circumstances warranting a deviation from the prescribed minimum
sentence of life imprisonment
in respect of count 1.
[30]
The accused engages in philanthropy and reference here was made to
the undisputed evidence of
Ricky Ganhes who testified that the
accused purchased bread from him on a regular basis for distribution
to the poor in the Eastwood
area in Pietermaritzburg. In addition,
having regard to exhibit ‘MMMM’, he contributes an amount
of R1 500 every
month to a feeding programme run by SANZAF,
[13]
diligently attends and participates in various religious ceremonies
conducted at the temples in Pietermaritzburg
[14]
and has since 2012, contributed the sum of R3 000 per month to
the KZN Cerebral Palsy Association in respect of a child Emihle
in
order for her to attend the day care centre.
[15]
[31]
Mr
Howse
submitted that the accused conducts himself in a
highly commendable manner and his contribution to society and his
philanthropy
constitutes a substantial and compelling circumstance.
[32]
In dealing with exhibit ‘LLLL’, the victim impact
statement of the deceased’s
father, Mr
Howse
submitted
that an important fact had been omitted as the deceased’s
parents, wife and two children, have instituted a civil
claim against
the accused in respect of loss of support resulting from the death of
the deceased. The accused has defended this
action and if a long term
of imprisonment is imposed, his capacity to pay any damages will be
severely affected, if he is unsuccessful
in defending such action.
The
offences
[33]
Insofar as the offences are concerned, when dealing with the nature
of the offences, Mr
Howse
stressed that the court accepted the
motive advanced by the State for the accused embarking upon such
criminal conduct. Reference
was made to the indictment, specifically
paragraph 4, which referred to his emotional devastation and the fact
that these emotions
remained constant throughout the period it was
alleged the accused embarked on the conduct. Mr
Howse
indicated that he was not going to allege diminished responsibility,
but indicated that the accused’s emotional state was
a relevant
factor and constituted substantial and compelling circumstances as
the court accepted this as the motive for the accused’s
conduct
being the alleged affair and that these emotions ran high throughout
the entire period it was alleged these offences were
committed.
[34]
The relevance of motive at the sentencing phase, he submitted, is
important.  When the court
imposes a sentence, the court must
consider such sentence against the background that prevailed, namely
the evidence of the accused
that he was emotionally devastated when
he found out about the deceased and his wife’s alleged affair,
and that this formed
the backdrop for and precipitated the aggression
and the various endeavours he had embarked upon.
[35]
He also encouraged the court to consider the undisputed evidence of
the accused relating to the
deceased’s conduct and that the
deceased was not an ‘innocent victim’ in relation to the
events which precipitated
the alleged assault. In this regard he
referred to the snowball incident, the incident at Sonali’s
birthday party when he
was pushed into the pool, the humiliating text
messages that were exchanged on the Whatsapp group, specifically that
from the deceased
which related to the accused’s lack of formal
education. He submitted that one must consider the accused’s
evidence
and the date when the alleged conduct began in February
2012.
[36]
Mr
Howse
indicated that in respect of count 2, when one
considers the seriousness of the offence that is alleged, both Sugen
Naidoo and
the prosecutor were of the view that Mariamma Kisten’s
evidence as contained in her affidavit would not sustain criminal
charges and consequently there was no prejudice to the deceased.
[37]
Likewise in count 3, there was no prejudice to the deceased but such
conduct was indicative of
the emotional devastation suffered by the
accused. He acknowledged that in count 4 there appears to have been a
more concerted
effort insofar as the laying of the charges was
concerned, but that one must bear in mind the blameworthiness of
Sonali Sookraj.
She testified that she wanted revenge against the
deceased. The accused’s emotional devastation and that of
Sonali Sookraj
he submitted, should feature when imposing sentence,
and the fact that there was no prejudice to the deceased.
[38]
Insofar as count 5 is concerned which was the alleged paintball
incident, Mr
Howse
submitted that it was difficult to
understand what the accused wanted to achieve. The harm caused was
testified to by Sugen Naidoo
who observed the deceased’s
injuries. Apart from his evidence, there was no clear evidence as to
the nature of the injuries
and what exactly had transpired. If one
considers counts 2 to 5 jointly, the offences are not so serious and
consequently in respect
of the sentence to be imposed in these
counts, the court is at liberty to impose non-custodial sentences.
[39]
Mr
Howse
submitted that in respect of count 6, the accused was
in an emotional state at the time. Professor Sithebe testified to
this and
indicated that the accused became emotional on several
occasions. In respect of count 1, both Sugen Naidoo and Morné
Emersleben
testified concerning the accused’s emotional state.
They both testified that the accused wanted to exact revenge on the
deceased.
The emotional trauma which the accused had suffered
appeared to be the main motivating factor for the conduct
throughout.
[40]
The State has proved no previous convictions against the accused and
he has no pending cases
against him and is a first offender in
respect of these offences.  There is no indication that he has a
propensity to perpetrate
violent crimes. These were isolated
incidents precipitated by the deceased’s alleged affair with
his wife which resulted
in him being emotionally devastated. He
indicated that the accused is aware that the offences of which he has
been convicted are
serious, more so that in relation to count 1, the
murder of the deceased which attracts the prescribed minimum sentence
of life
imprisonment. He conceded that a custodial sentence is the
only option.
I
propose to now deal with the submissions in relation to the aspect
involving the primary caregiver and the needs of the accused’s

minor children.
Primary
caregiver and the needs of the accused’s minor children
[41]
It was submitted by Mr
Howse
that in respect of the accused,
it is undisputed that in terms of the submissions placed before the
court and the documentary evidence
contained in exhibit ‘MMMM’,
the accused is the primary caregiver of Sonali and having regard to
the contact arrangements,
is the primary caregiver of Ariv, certainly
from a financial perspective. Having regard to the divorce order, it
is apparent that
the accused was awarded primary residence of Sonali.
In addition, even though the accused and Kerusha Soni are co-holders
of parental
responsibilities and rights of the minor children, the
divorce was settled giving recognition to the accused being the
primary
caregiver of Sonali.
[42]
The contact arrangements
[16]
record the following contact by the parties with the minor children,
namely:
(a)
Mrs Soni exercises contact with Ariv for four days in a week which
would include picking
him up after school on a Tuesday and keeping
him for three consecutive nights until the Friday morning. She is
also entitled to
keep him for an additional night either on a Friday
or Saturday night which is to be alternated between the accused and
Mrs Soni.
In the event that Ariv is with Mrs Soni on a Friday, then
he is to be dropped off with the accused at two o’clock on a
Saturday.
In the event of him being with her on a Saturday,
then he is to be dropped off with the accused at two o’clock on
the Sunday.
(b)
The accused
[17]
is to exercise
contact with Ariv from Sunday to Tuesday morning when he is taken to
school. He is also entitled to exercise contact
with him on another
day being either a Friday or Saturday to accommodate for alternate
weekend arrangements between him and Mrs
Soni.
(c)
In respect of Sonali and Ariv, the accused is to exercise contact
every alternate
Friday from after school to Saturday at two o’clock.
Mrs Soni is to exercise contact with Sonali/Ariv every alternate
Saturday
when she is not exercising contact with Sonali on a Friday,
from two o’clock on a Saturday to two o’clock on a
Sunday.
In addition, the agreement records that Mrs Soni is
responsible for preparing their children’s lunches each morning
and taking
the children to school each morning. On the days that she
is not exercising contact, then the accused is exercising contact.
The
agreement also records that in the event of Sonali wishing to
spend more time with Mrs Soni, then the accused will have no
objection
thereto and contact which the accused has with Ariv would
apply to Sonali.
[43]
The agreement records that the accused is responsible for payment of
all educational expenses
for the minor children up to tertiary
education and all medical expenses in respect of the minor
children.
[18]
[44]
Mr
Howse
recorded that Sonali has a troubled relationship with
Mrs Soni and historically has lived with the accused in his home and
he plays
a key role in her upbringing. The settlement agreement and
the divorce order gave meaning and effect to this arrangement which
has existed prior to the divorce. The relationship between Sonali and
her mother, he referred to as being “complex”.
It is
important for Sonali’s development, specifically her emotional
development that the accused continues to play an active
role in her
life and also that of Ariv. It is for this reason that it was
submitted that the accused not be sentenced to a period
of life
imprisonment as experience has shown that persons facing a
determinate sentence are treated far more differently from ‘lifers’.
[45]
In addition, he requested me to issue orders directing that the
accused be held in a prison close
to his home and that visits between
him and the children are face-to-face contact visits. In support of
these submissions he referred
to the report of an educational
psychologist, Tarryn Blake.
[19]
It was conceded that although this report was compiled on 19 January
2018, it was not for purposes of the sentencing proceedings,
rather
it was done in the best interests of Sonali and as a consequence of
the fact that both parents were concerned about her
academic
functioning, specifically relating to concentration and attention. Ms
Blake in her report indicates that the family relationships
are
reportedly poor with much conflict. Sonali’s parents reported
that she did not have a good relationship with her mother.

Consequently, it was submitted that the report must be read in
conjunction with the contents of the settlement agreement in relation

to the contact and primary residence arrangements concluded
concerning the minor children.
[46]
A report from Floss Mitchell, a counselling psychologist,
[20]
confirms that Sonali has been a patient of hers since April 2015.
At her request, Kerusha informed Floss Mitchell of the
outcome of the
court proceedings on 19 September 2018. In her report Floss Mitchell
indicates that she has regularly communicated
with Sonali’s
parents whilst Sonali was in therapy with her. She opined that Sonali
has been negatively affected over the
years from the unfolding legal
matters and the complex and understandably tense relationship between
her parents. She further records
that Sonali has had her primary
residence with the accused and that their relationship is emotionally
close and Sonali is anxiously
dependent on the accused at this time.
The divorce settlement agreement endorses that fact.
[47]
She recommends that if possible and if the accused is imprisoned,
visits between him, Sonali
and Ariv should take place on a
face-to-face situation in the presence of the prison services’
social worker or psychologist.
The motivation for such request is the
concern for Sonali’s emotional wellbeing as a consequence of
the serious loss and
adjustment she will face because of her father’s
incarceration.
[48]
In making these submissions Mr
Howse
submitted that a parallel can be drawn between the sentence and the
recommendations imposed by Steyn J in the matter involving
S
v Stokes
.
[21]
A copy of the transcript of the sentence delivered was handed in. Mr
Howse
has requested that in the event of a determinate sentence being
imposed, then recommendations ought to be included as Steyn J did
in
relation to the Department of Social Development as a consequence of
Mr Stokes being the primary caregiver of his minor daughter.
[49]
In addition, Mr
Howse
submitted that this was an unusual,
extraordinary and complex matter warranting careful consideration.
Substantial and compelling
circumstances existed sufficient to
require a deviation from the mandatory prescribed minimum sentence in
respect of count 1 as
the accused is the primary caregiver of Sonali
and, in addition, the reports submitted support the submissions that
directions
be issued for the accused’s contact with the minor
children whilst he is incarcerated.
[50]
Not unsurprisingly, Mr
Howse
went so far as to suggest that as
in the
Stokes
matter in which the minor child, Tahlia was a
special needs child, Sonali was ‘very close to that’.
I
now propose to deal with the comparative sentences I was referred to
in respect of crimes of passion.
Comparative
sentences imposed for ‘crimes of passion’
[51]
Mr
Van Schalkwyk SC
relied on several cases for the submission
that the prescribed minimum sentence was not the appropriate sentence
where crimes of
passion are involved.
[52]
In
S v
Khwela
[22]
the accused, a 44 year old first offender was convicted of murder of
the man who formed a love relationship with the woman whom
the
accused had previously had a love relationship. In sentencing the
accused, the court held that the emotional conflict and disturbance

which resulted from the broken love relationship could well have had
a bearing on the mind of the accused who killed an ex-lover’s

new lover. The court imposed a sentence of 22 years’
imprisonment even though the murder was pre-planned and even though

at the time of the commission of the murder there was no suggestion
that the accused was in any heightened emotional state of mind.
[53]
In
S v
Meyer
[23]
on appeal the death sentence which had been imposed was altered to
one of eight years’ imprisonment. The court of appeal
found
that such was an appropriate sentence despite there being
‘voorbedagte rade’.
[54]
In
S v
Shoba
[24]
the accused, who had murdered his lover, on appeal the court held
that the trial court considered the emotional conflict situation

which had prevailed and the death sentence was altered to a sentence
of 12 years’ imprisonment. In
S
v Hlatswayo & another
[25]
a sentence of 20 years’ imprisonment was imposed on each of the
accused who had been hired to kill the deceased by a woman
who
alleged that the deceased had raped her. Such was a particularly
gruesome murder in which the deceased was repeatedly assaulted
with a
wheel spanner and subsequently set alight. Because the body did not
burn completely, one of the accused remained and stood
guard over the
body whilst the other left to purchase more petrol.
[55]
In
S v
Mathe
[26]
Gorven J imposed a sentence of 10 years’ imprisonment in
respect of a murder conviction. The court held that even though
the
accused had pleaded guilty, this was of little moment, but that the
emotional struggle of dealing with the history of infidelity
and lack
of honesty by his fiancée, constituted substantial and
compelling circumstances. The accused had murdered his fiancée

whom he alleged had a history of infidelity. She was murdered in
circumstances where she indicated that the last affair had ended
but
the accused discovered that this was not the case.
[56]
In
Director
of Public Prosecutions v Mngoma
[27]
the Supreme Court of Appeal increased the sentence in respect of a
murder conviction of an accused in circumstances where he had
killed
his lover four days after suspecting her infidelity.  The
sentence was increased from five years’ to 10 years’

imprisonment. The court of appeal held that the accused was under
serious provocation and experienced extreme hurt and anger caused
by
the deceased’s infidelity. Although 12 years’
imprisonment was appropriate, the appeal court deducted two years
for
time served in prison and under correctional supervision.
[57]
In
S v
Mnisi
[28]
the Supreme Court of Appeal held that a sentence of five years’
imprisonment was appropriate in a case where the appellant
had shot
the deceased who had been in an adulterous relationship which the
accused resented and found humiliating. The court found
that the
accused had acted with diminished responsibility as a consequence of
provocation and emotional stress preceding the shooting.
[58]
In addition, an important factor which must be considered when
sentencing the accused, Mr
Van
Schalkwyk SC
submitted, was the moral blameworthiness of the accused. The cases
draw a clear distinction between the moral blameworthiness of
the
hired killer and the person who hires the killer. Reference was made
to the decision of
S
v Ferreira & others
.
[29]
[59]
In conclusion, both Mr
Van Schalkwyk SC
and Mr
Howse
submitted the following constituted substantial and compelling
circumstances warranting a deviation from the prescribed minimum
sentence in respect of count 1, namely:
(i)
the accused is a primary caregiver of his two minor children. His
daughter Sonali
has serious psychological problems;
(ii)
the accused’s mental and emotional state at the time of the
offences must be
considered and he ought to be seen as acting with
diminished responsibility, he could not reconcile himself to what had
occurred
between the deceased and his ex-wife Kerusha ;
(iii)
one must also not lose sight of the fact that the murder was a crime
of passion and the
court accepted the motive submitted by the State
for the commission of the offences.
I now propose to deal
with the State’s submissions.
The State’s
submissions
[60]
Mr
Du Toit
submitted that there was no reason to depart from
the prescribed minimum sentence in respect of count 1. That despite
the accused’s
apparent ‘religious fervour’ this
pales in significance if one compares it with what he did over a
period of 18 to
20 months. The accused had no regard to Sonali when
he committed these offences. He had no regard to the family of the
deceased
or the two daughters of the deceased. All he had regard to,
Mr
Du Toit
submitted, was his ego and his selfish needs. He
was going to punish the deceased no matter what. He indicated that
the accused
did not put the matter to rest. Even though he testified
regarding the so-called ‘peace meeting’, it would appear
that
he embarked on this conduct over a period of 18 to 20 months
until he avenged the deceased’s alleged affair with his wife.

The accused had several opportunities to stop and put the matter to
rest. If one considers the incidents in relation to counts
2, 3 4, 5
and specifically count 6, after his interaction with Professor
Sithebe, he had an opportunity to stop. He did not, he
went further
and then solicited the services of Brian Treasurer to finally put the
matter to rest.
[61]
Even though the submission was made that the accused is not a danger
to the community, he submitted
that he is, in that the accused used
corrupt policemen to do his bidding for him. He used money to obtain
his ends. The accused
has not shown any sign of remorse but the cold
reality of imprisonment has now struck him, hence the reason why one
hears of his
philanthropy and his contribution to society.  Mr
Du Toit
submitted that the accused would suffer from
depression irrespective of whether a period of 12 years’ or 20
years’
imprisonment is imposed. The accused set out without any
thought of the consequences to commit a series of offences. At the
time
he had no concern for the deceased’s family and who was to
support the deceased’s two children and his parents. Now
that
he has been convicted of committing these offences, his concern is
‘if I go to jail who is going to support my two children,

specifically Sonali?’.
[62]
In response to the suggestion that I should follow the example set by
Steyn J in the matter of
S v Stokes
when sentencing the
accused, Mr
Du Toit
submitted that this ought to be left to
the prison authorities as they are best placed to deal with the
visits between his family
and also to deal with his medical problems.
He also re-emphasised the fact that there was a concerted effort on
behalf of the accused
to get rid of the deceased. He indicated that
this was not a crime of passion and neither was any emotional
storming involved as
indicated by Mr
Van Schalkwyk
SC
and
Mr
Howse
. He indicated that this was cold blooded conduct by
the accused which continued over a period in excess of a year until
it ended
with the death of the deceased in May 2013.
[63]
Although there was a close relationship between Sonali and her father
and the fact that she had
a troubled relationship with her mother,
how and when it started is as a consequence of the accused’s
own behaviour. The
problems between him and his wife is when the
trouble started. Mr
Du Toit
indicated that both sets of
children would have to adjust, those of the deceased and those of the
accused. He indicated that it
was ironic of the accused to suggest
that his children will now suffer and no longer be accustomed to the
lifestyle they enjoyed
whilst he was out of prison, but now they will
have to adjust to a ‘lower lifestyle’ because of his
incarceration.
What about the children of the deceased and the kind
of lifestyle that he, his wife and his parents enjoyed and were
forced to
adjust to, when they were robbed of the deceased?
[64]
He indicated that one wonders why the accused was awarded primary
residence of Sonali when he
knew that he was facing a possible prison
sentence.  He indicated that the accused displayed no remorse or
regret for his
conduct. His actions occurred over a lengthy period of
time and he involved corrupt policemen in his conduct and persons who
were
vulnerable both emotionally, referring here to Sonali Sookraj,
and financially, referring here to Mariamma Kisten. His lack of
remorse must count against him when the court is imposing sentence.
In addition, he involved and took advantage of so many persons,

specifically the ‘corrupt policemen’ who lost their
employment and who were the breadwinners in their families.
[65]
In addition, he submitted that it is highly unlikely that the
accused’s family would not
assist and assist in the support his
children. He further indicated that there was no provocation by the
deceased or any behaviour
which was indicative of these being crimes
of passion. In addition, there were no substantial and compelling
circumstances which
exist if one considers all the factors
holistically. In addition, Mrs Soni has her own business and it has
not been suggested that
she is unable to take care of the children.
In fact it was placed on record that since the guilty verdict and the
accused’s
bail being revoked on 19 September 2018, Sonali and
her brother have been living with Mrs Soni, albeit for a short period
of time.
Both families have been affected by this conduct and
consequently they both have to adjust their standard of living.
[66]
In dealing with the submissions relied on by the State in respect of
the motive and the submissions
made by Mr
Howse
, Mr
Du Toit
indicated that having regard to the summary of substantial facts
and the response to the request for further particulars supplied
by
the State to the request of the accused, in respect of count 1, the
State alleged that the accused’s motive for conspiring
with and
inciting others to kill the deceased was because he believed that
this wife, Kerusha and the deceased were having a romantic

relationship. The State intended to convey that the accused formed a
suspicion that his wife was in a romantic relationship but
the State
did not allege that a relationship existed between the accused’s
wife and the deceased.
[67]
In response to a question relating to the exact nature of the
emotional devastation the State
alleged the accused suffered, the
response was that the exact nature of such emotional devastation was
unknown to the State.
I
now propose to deal with the victim impact statement.
Victim
impact statement
[68]
In aggravation of sentence, the victim impact statement
[30]
of Parmanand Sewram, the deceased’s father, was handed in by
consent. In such victim impact statement Mr Sewram Senior indicated

the extent of the loss suffered by the family as a consequence of his
son’s death. He indicates that it was not only a loss
to the
family but also to the community as a whole as the deceased was a
generous individual and utilised his time, money and resources
for
the benefit of members of the community. He fed the poor, donated to
charitable institutions and assisted persons no matter
their race,
culture, gender, age and disability. In addition the deceased, a
doctor, would assist the sick and elderly and help
them obtain old
age and disability grants and render free medical services in the
medical camp organised by the Satya Sai Organisation.
[69]
He dealt with the fact that the deceased’s mother, his wife,
underwent surgery to have
three stents inserted and as a consequence
of the death of their son, this aggravated her existing heart
condition. The deceased
assisted them financially and assisted them
in renovating their home to make it more age-friendly.
[70]
The deceased’s death had a huge emotional impact on them both,
as a consequence of which
they sought and received counselling from
trauma counsellors and attended counselling sessions with
psychologists to cope with
their day to day routine. Shortly before
his death, their son had made an offer to purchase a home for them
but such sale could
not be finalised as a consequence of his untimely
death. In addition, he referred to various tributes which were
received from
the community which are annexed to the victim impact
statement.
[71]
That then concluded the submissions made and the evidence presented.
Analysis
[72]
I have considered the detailed oral and written submissions of Mr
Du
Toit
,
Mr
Van
Schalkwyk
SC
and
Mr
Howse
and in deciding on appropriate sentences have had regard to the
following bearing in mind the triad of
Zinn
,
the victims and the children of the accused.
[73]
The minimum sentences are the starting point when imposing a
sentence. In respect of count 1,
being the murder count, the
prescribed minimum sentence is that of life imprisonment. There are
no prescribed minimum sentences
applicable to the remainder of the
counts.
[74]
I have already dealt with the circumstances in this judgment as to
when a court will deviate
from imposing the prescribed minimum
sentence, namely, when there are substantial and compelling
circumstances found to exist or
when to impose the prescribed minimum
sentence would be disproportionate having regard to the crime, the
offender and the interests
of society.
[75]
In addition, various other factors have been considered over the
years as the jurisprudence in
respect of sentencing has developed,
specifically in relation to the CLAA. One sees how our courts when
sentencing have taken cognisance
of the impact which offences have
had on the interests of the victim and the best interests of children
and the effects it will
have on the care of a child when a primary
caregiver is to be sentenced to a custodial sentence.
[76]
I propose to deal with the aggravating factors submitted by
Mr Du
Toit,
and mitigating factors and submissions raised by the
accused in respect of why the prescribed minimum sentence of life
imprisonment
ought not to be imposed in respect of count 1. One may
recall that in relation to count 1 in the judgment on conviction the
court
found that the murder of the deceased was planned and
premeditated and further that the accused conspired with Naidoo,
Treasurer,
Dlamini and Nxumalo in furtherance of a common purpose to
kill the deceased.
[77]
At the hearing of the argument in mitigation of sentence both
Mr
Van
Schalkwyk
SC
and
Mr
Howse
,
quite correctly so, in my view, did not detract from these facts
found to have been proved. They acknowledged, rightly so in my
view,
that the accused ought to be punished for this offence and further,
that a substantial term of imprisonment ought to be imposed.
The
submission however, being that a determinate sentence ought to be
imposed as a consequence of the factors placed before the
court,
specifically to enable directions to be given for contact between the
accused and his children.
I
propose to deal with the submissions in relation to the accused’s
health issues.
The
accused’s health issues
[78]
Among the factors which the accused asked to be considered was his
health. The submission was
made that the accused has certain health
issues and given his family history there is a strong likelihood that
these will become
more severe. Having regard to the various decisions
on this like, for example
S
v
Berliner
;
[31]
S
v
C
,
[32]
this
does not necessarily result in an accused being kept out of prison.
In addition, the authorities have indicated that there
are sufficient
medical facilities in prison which can cater for the accused’s
present medical needs.
[79]
Ill health, in my view, on the facts of this matter is presently not
a factor to prevent a custodial
sentence from being imposed. There
have been no additional facts placed before me, warranting me not to
impose a substantial period
of imprisonment. In addition, should the
accused’s medical condition
deteriorate
to such an extent that he
becomes terminally ill, he can then exercise his rights in terms of
the provisions of the Correctional
Services Act and apply to be
considered for medical parole, subject to him satisfying the
requirements for same.
[80]
It is correct that the accused has no previous convictions and is a
first offender. Most notably,
the accused is to be commended for the
success he has achieved given the nature of the businesses which he
has built up over the
years and the various obstacles and hurdles he
has faced in doing so. He testified about being the only son, being
required to
step into his father’s proverbial shoes, and take
over the running of the business when his father fell ill but, most
importantly,
when his older sister fell ill and passed away. He was
not able to finish his primary education and most importantly, did
not go
on to obtain a tertiary education. His success in business is
certainly commendable, in my view, given the tremendous obstacles
he
must have faced being the only son having to step into the shoes of
the bread winner, his father.
[81]
It was submitted that his incarceration will place a tremendous
burden on his elderly mother
and his family. His nephews will have to
abandon their studies and assist in the running of the business. This
is an extremely
unfortunate situation, and no matter how sympathetic
I may me, it is unavoidable. The accused made a success of a business
opportunity
through sheer will and determination, displaying business
acumen, and I cannot exclude the possibility that his nephews may do
likewise. In addition, in this day and age, many people work and
study part-time and as difficult as this may be, if one has the

determination and the drive, one can do so. It may just take a little
longer to obtain a tertiary education.
[82]
From the evidence presented by the accused and as testified to by his
brothers-in-law, he shares
a close relationship with his family. I am
certain that they will step in and assist not only in the running of
the business but
in taking care of his mother’s needs. His
sister, he testified, lives with his mother which in my view, will
assist somewhat.
I
propose to deal with the issue touched on in relation to remorse.
Remorse
[83]
Whilst I accept that the accused is entitled to plead not guilty and
challenge the State to prove
its case against him, the accused has
shown no remorse for his conduct. A lack of remorse has often being
referred to as being
an aggravating factor. In
S
v Brand
[33]
the court held:
‘
.
. .
true remorse was an
important factor in the imposition of sentence, as it suggested an
offender who, firstly, realised that he had
done wrong, and,
secondly, undertook not to transgress again. True remorse led to
accommodating punishment by our Courts.’
[84]
I align myself with the authorities which find that an expression of
remorse, is an indication
that an accused person has realised a wrong
has been done. It has also been said that it is only a valid
consideration if the penitence
is sincere and the accused takes the
court into his or her confidence.
[85]
In S v
Matyityi
[34]
Ponnan
JA defined remorse as:
'. . .a gnawing
pain of conscience for the plight of another. Thus genuine contrition
can only come from an appreciation and
acknowledgement of the
extent of one's error.’ (Footnote omitted)
[86]
The authors of
Du Toit
Commentary on the Criminal Procedure
Act
in the commentary on s 274 noted that:
‘
Even
though there is a possibility that a convicted person who has not
shown any remorse at the time of sentencing, may do so in
the future,
a sentencing court cannot speculate in that regard and, in effect,
downplay the seriousness of the absence of remorse.’
[87]
In
S v
Hewitt
[35]
the court per Maya DP held the following:
‘
During
mitigation of sentence the appellant still showed no remorse for his
vile deeds. . .Whilst lack of remorse is not an aggravating

circumstance, it would have redounded to the appellant’s favour
if he had shown some appreciation and contrition for the
devastation
he caused.’
[88]
It has been placed on record that the accused is anxious to finalise
the sentencing proceedings
to enable him to proceed with appeal
proceedings. I also accept that he has a right to appeal this court’s
judgment. Some
show or indication of an appreciation of the
devastation that the deceased’s death caused to his family and
his children
would have gone a long way. It could also have been
voiced by his eloquent counsel on his behalf, whilst simultaneously
not jeopardising
his appeal. However, having said that, although a
lack of remorse is not an aggravating circumstance, it would
certainly have been
indicative that the accused appreciated the loss
of the deceased’s life, considering that he was a friend and
they had on
the accused’s evidence, reconciled their
friendship.
I
now propose to deal with the aspects of the accused as a primary
caregiver.
The accused as a
primary caregiver
[89]
Section 28 of the Constitution enjoins the court as the upper
guardian of minor children to consider
the best interests of
children. Among the factors to be considered are the interests of the
children when sentencing a primary
caregiver.
[90]
In
S v M
(Centre for Child Law as Amicus Curiae)
[36]
Sachs
J, dealing with the need to consider the interests of children during
sentencing proceedings of an accused who is a
mother of minor
children, said the following in para 33:
'Focused
and informed attention needs to be given to the interests of children
at appropriate moments in the sentencing process.
The objective is to
ensure that the sentencing court is in a position adequately to
balance all the varied interests involved,
including those of the
children placed at risk. This should become a standard preoccupation
of all sentencing courts. To the extent
that the current practice of
sentencing courts may fall short in this respect, proper regard
for constitutional requirements
necessitates a degree of change
in judicial mindset. Specific and well-informed attention will always
have to be given to ensuring
that the form of punishment imposed is
the one that is least damaging to the interests of the children,
given the legitimate range
of choices in the circumstances available
to the sentencing court.'
[91]
The following guidelines are set out in
S
v
M
para 36:
‘
There
is
no
formula
that
can
guarantee
right
results.
However,
the
guidelines
that
follow
would,
I
believe,
promote
uniformity
of principle, consistency of treatment and individualisation of
outcome.
(a)
A
sentencing
court
should
find
out
whether
a
convicted
person
is
a
primary
caregiver
whenever
there
are
indications
that this might be so.
(b)
A
probation
officer's
report
is
not
needed
to
determine
this
in
each
case.
The
convicted
person
can
be
asked
for
the information and if the presiding
officer has reason to doubt the answer, he or she can ask the
convicted person to lead evidence
to establish the fact. The
prosecution should also contribute what information it can; its
normal adversarial posture should
be relaxed when the interests of
children are involved. The court should also ascertain the effect on
the children of a custodial
sentence if such a sentence is being
considered.
(c)
If
on
the
Zinn
-triad
approach
the
appropriate
sentence
is
clearly
custodial
and
the
convicted
person
is
a
primary
caregiver, the court must apply its
mind to whether it is necessary to take steps to ensure that the
children will be adequately
cared for while the caregiver is
incarcerated.
(d)
If
the
appropriate
sentence
is
clearly
non-custodial,
the
court
must
determine
the
appropriate
sentence,
bearing
in
mind the interests of the children.
(e)
Finally,
if
there
is
a
range
of
appropriate
sentences
on
the
Zinn
approach,
then
the
court
must
use
the
paramountcy
principle concerning the interests of the child as an important guide
in deciding which sentence to impose.’
[92]
A court considering a custodial sentence must have regard to the
impact such sentence might have
on children and has a duty to ensure
that as far as possible, the children's rights are protected (
S
v
de
Villiers
2016 (1) SACR 148
(SCA)). A
child's best interests are of paramount importance in every matter
concerning the child as referred to in s 28(2) of
the Constitution.
[93]
One of the issues which concerned me during argument on sentence was
whether I needed to obtain
a social worker or probation officer’s
report when dealing with this aspect. I raised this with Mr
Van
Schalkwyk SC
during the course of argument, and he submitted that it was not
necessary to do so in this matter as all the relevant facts to
be
canvassed by a social worker or probation officer had been placed
before me. Given the submissions and reports it
would
serve no purpose for me to do so other than to delay the sentencing
proceedings.
[94]
In
MS v
S (Centre for Child Law as Amicus Curiae)
,
[37]
the
Constitutional Court in dealing with a sentence of a young mother and
the information needed in order to arrive at an
appropriate sentence,
said the following in para 64:
'In
S v M
,
information about the position of the young children and their
care during their mother's incarceration was entirely lacking.
Here,
by contrast, an informative probation-officer report dealing with the
position of the children was available to the sentencing
court, and
carefully considered by the sentencing magistrate. A second report
was later commissioned by the family and, after remittal
to the trial
court for inclusion in the record, evaluated together with the other
evidence. Two reports were thus before the High
Court and the Supreme
Court of Appeal. Neither suggests that the fundamental needs or the
basic interests of the children will
be neglected if their mother is
incarcerated.' (Footnotes omitted)
[95]
The Constitutional Court went further and stated the following in
para 65:
'After hearing
argument, this court obtained a further report from a curator.
Nothing in the report of the curator suggests that
the children will
be inadequately cared for should their mother be incarcerated in
accordance with the sentence imposed on her.'
[96]
Having regard to
S
v M,
MS
v S supra
and
S
v
Chetty
[38]
and considering the contents of exhibit ‘MMMM’, I agree
that I have been furnished with all the relevant information
in this
regard and it was not necessary to call for same.
The
authorities referred to indicate that the court exercises its
discretion to obtain the services of a probation officer and a
social
worker in circumstances where it is not in possession of all the
facts upon which a proper determination can be made.
[97]
In addition, I am of the view that Sonali and Ariv are not children
in need of care as their
mother, Mrs Soni, can care for them in the
absence of the accused. I have no doubt that Ms Floss Mitchell can
continue to assist
Sonali make the adjustment and the family of the
accused.
[98]
The distinguishing feature in this matter is that in terms of the
divorce order the primary residence
of Sonali was awarded to the
accused. In addition, various expert reports have been referred to
dealing with this aspect. This
has been the position in light of the
difficulties which Sonali has had in her relationship with her
mother. However, a most important
feature of the settlement
agreement, as well as the divorce order issued, is the fact that the
accused and Mrs Soni retained their
parental rights and
responsibilities. In other words, Mrs Soni did not relinquish her
parental rights and responsibilities in relation
to Sonali and
neither did the accused relinquish his parental rights and
responsibilities in relation to Ariv.
[99]
The use of the words ‘primary caregiver’ in clauses (b)
and (c) on page 2 of the
settlement agreement is in my view
misleading. If one reads it in context, what actually is being
referred to is the primary residence
of each child. Each child has
historically had their residence with that particular parent. One
seldom sees in settlement agreements
reference to primary caregiver.
In addition, it also makes provision for an increase in contact
between Sonali and Mrs Soni if
Sonali expresses a desire to do so.
[100]
A proper reading of the settlement agreement also incorrectly refers
to the parties in certain paragraphs. When
Mrs Soni exercises contact
with the children, she is responsible for their daily needs. The
language used in the settlement agreement
is not typically used in
settlement agreements and given the timing of the divorce, which
significant date neither the accused
nor his attorney, Mr Ayoob,
could correctly remember, the thought did cross my mind if Mr
Du
Toit
is not correct in his suggestion that this was contrived. Be
that as it may, the divorce order refers to primary residence and I

will not allow this submission to influence me in any way.
[101]
I also had regard to the fact that since his incarceration on 19
September 2018, both the minor children have
been primarily resident
with Mrs Soni. I am thus not persuaded that this ought to be a factor
which should deter the court from
not imposing a term of
imprisonment. In addition, the fact that the accused was the primary
financial provider for both children
does not detract from the fact
that this was a term of a settlement agreement and part of the
maintenance orders agreed to.
[102]
Mr
Du Toit
is quite correct that when a change of this nature
occurs there is a huge adjustment in respect of not only the minor
children
but also the families involved. At the outset, in the
introduction to this judgment, I indicated that the parties affected
are
the minor children of both the deceased and the accused. In
addition, given the financial standing of the accused and the nature

of his business it is highly unlikely that his family will not step
up should the needs of the children dictate that they require
further
financial assistance.
[103]
All I have been provided with are submissions from the bar that Mrs
Soni is not in a position to take care of
the children financially to
the level that they have grown accustomed to. However, the terms of
the settlement agreement make it
clear that she has made a
contribution towards the financial care of the children and this
should not be seen as a factor to deter
the court from imposing a
term of imprisonment. In addition, she waived her right to claim
maintenance from the accused as she
runs her ‘own business and
is earning sufficient income’.
[104]  In
MS
v
S
para 35
Khampepe J held:
‘
I am mindful that a sentencing
court is not required to protect the children from the
negative consequences of being separated
from their primary
caregivers. It is required only to pay appropriate attention to their
interests and take reasonable steps to
minimise damage. This requires
a balancing exercise that takes account of the competing interests.’
(Footnote omitted)
[105]   Further
at para 45 of the judgment the court held the following:
‘
I accept, as the curator found,
that the children will be adversely affected by the incarceration of
their mother, as she is their
primary caregiver. However, this on its
own does not impose any obligation on the sentencing courts to
protect, at all costs, the
children from the inevitable
consequences of losing their primary caregiver if she is
incarcerated. All that is required is
that the court must pay
proper attention to these issues and take measures to minimise
damage when weighing up the competing
needs of the children, on the
one hand, and the need to punish Mrs S for her misconduct, on the
other.’
[106]   Further
at paras 47 and 48 of the judgment the court deals with the aspect of
what constitutes a primary caregiver.
The court records this as the
following:
‘
What constitutes a primary
caregiver is the following:
“
Simply
put, a primary caregiver is the person with whom the child lives and
who performs everyday tasks like ensuring that the child
is fed
and looked after and that the child attends school regularly.
This is consonant with the expressly protected right
of a child to
parental care under s 28(1)
(b)
.”
It is incumbent on the courts to start
their analysis from the basis of the best interests of the
children, as mandated by
s 28 of the Constitution, not just the mere
interests of the children. If there appears to be a partner of a
primary caregiver,
the question should then be whether that partner
can provide adequate care under s 28(1)
(b)
of the Constitution
or whether there is evidence that that parent is inclined to neglect
the children's needs, contrary to s 28(1)
(d)
of the
Constitution.’ (Footnotes omitted)
[107]   Further
at paras 62 and 63 Cameron J held the following:
‘
S v M
has revolutionised sentencing in cases where the person convicted
is the primary caregiver of young children. It has reasserted
the
central role of the interests of young children as an independent
consideration in the sentencing process. Yet it would be
wrong to
apply
S v M
in cases that lie beyond its ambit. The mother in
S
v M
was a single parent,
and was almost exclusively burdened with the care of her children.
There was no other parent who could, without
disruption, step in
during her absence to nurture the children, and provide the care they
need, and to which they are constitutionally
entitled.
That is not the case here. Mrs S is
not the children's sole caregiver. She is not “almost totally
responsible” for
their care. Despite heartache and
turbulence, well captured in her evidence and in the social
workers' reports, Mrs S is united
with the father of her
children. He is their co-resident parent. And he is willing to care
for them during her incarceration. Although
he works long hours,
there is nothing to indicate that he will not be able to engage the
childcare resources needed to ensure that
the children are well
looked after during his absence at work. A non-custodial
sentence is therefore not necessary to ensure
their nurturing. And a
custodial sentence will not inappropriately compromise the children's
best interests. The sentencing court
in my view properly balanced out
the constitutional interests at stake.’ (Footnote omitted)
[108]  I agree that
the rights recognised in s 28
are
not absolute and do not assume dominance over other constitutional
rights.
[109]   The
children have a secondary primary caregiver in Mrs Soni and the
children are not without support from the
accused’s family. I
have no doubt that they will assist, both from an emotional and
financial perspective in the best interests
of Sonali and Ariv. Mrs
Soni has acted as primary caregiver for Ariv. There is no suggestion
that any difficulties have arisen
from her doing so and Ms Floss
Mitchell in her report has indicated that although Sonali has had her
primary residence with the
accused, ‘her parents have however,
co-parented’.
[110]   The
report of Ms Blake indicates that Mrs Soni assisted Sonali with her
homework and that her anxiety relates
to her father’s court
case. Sonali indicated to her that she was desirous of wanting the
court case finalised. Sonali has
a good relationship with her brother
and reported that she found it difficult to go from one home to
another and expressed a desire
to have one home. I have also noted
that Ms Blake in her report indicates that Sonali ‘should be
encouraged to develop greater
independence from her father and be
encouraged to sleep in her own bed’. Although I have not
specifically referred to all
her recommendations in this judgment I
have taken note of them.
[111]
In order to deal with the situation arising in the event of
incarceration, the Constitutional Court said the following
in para
66:
'To mitigate the
possibility of the children enduring hardship during their mother's
absence, it seems to me that this court should
order the Department
for Correctional Services to ensure that a social worker visits them
regularly, and that he or she provides
the department with reports
on their wellbeing during their mother's absence.'
[39]
[112]
In
S v
Howells
[40]
the
court resorted to a similar order to deal with the position of minor
children after the incarceration of a mother. I propose
to do
likewise and issue an order that a social worker visits the minor
children
of
the accused regularly and that he or she provides the Department
with reports on their well-being during their father’s

absence.
This will ensure that the children’s needs are protected.
[113]
I was also asked to impose a determinate sentence and not that of
life imprisonment. In addition I was also referred
to the decision of
Steyn J in sentencing proceedings involving the accused, Ian Stokes.
I was asked to consider the directions
she imposed in sentencing Mr
Stokes and to give consideration to imposing similar conditions when
sentencing the accused in this
matter.
[114]
The distinguishing feature between this current matter and that of Mr
Stokes was that Mr Stokes was the primary
caregiver of his daughter,
Tahlia. His wife was undergoing treatment at a rehabilitation centre
and there was evidence submitted
to the court that shortly after her
birth, given the nature of her difficulties, he was the primary
caregiver of their daughter.
The evidence was that Mrs Stokes, during
the course of their marriage, had undergone extensive bouts of
rehabilitation for various
difficulties she had experienced.
[115]
Such is not the case in this particular matter. In any event the
settlement agreement concluded between the accused
and Mrs Soni makes
provision for the fact that there may be a change in the contact
arrangements of the minor children, specifically
Sonali, should
circumstances change. In all probability it must have been envisaged
that there would be an improvement or a change
in the relationship
between Sonali and Mrs Soni given the fact that Sonali is undergoing
treatment.
[116]
These submissions were also made to ensure that the accused could be
kept in a prison closer to home and for face-to-face
visits to be
conducted with the children, especially Sonali. I am mindful of the
fact that a court imposing sentence does not have
the power to
stipulate in which facility the accused will serve his or her
sentence and to prescribe how he is to serve his term
of
imprisonment. However, to assist both Sonali and Ariv, I will
recommend that the Department of Correctional Services, as suggested

by Ms Floss Mitchell, engage a social worker to facilitate contact
with the accused and his children and that reports are prepared

regarding their care.
I
propose to now deal with the submissions relating to the fact that
these were crimes of passion.
Circumstances
in which the offences were committed
[117]
It was submitted that these were crimes of passion, given the court’s
finding of the apparent motive for
the accused’s conduct. The
suggestion was made that the accused could not reconcile himself to
what in his mind had allegedly
transpired between the deceased and
his wife and he embarked on this conduct.
Was
this a true crime of passion?
[118]
The question which I have to ask myself in considering the facts of
this matter and the authorities I have been
referred to, is whether
these were true crimes of passion? I have considered the case
authorities I have been referred to in support
of the submissions in
respect of this and whether at the time the accused acted in
circumstances of ‘diminished responsibility’
or
‘emotional storming’. It is correct that the court
considered the State’s submissions in respect of the possible

motive for the commission of the crimes as being the accused’s
perception of a love triangle. The accused’s defence
was to
deny this as being the possible reason for the commission of the
crimes. His defence throughout was that he had not committed
the
offences in question and further that he and the deceased had
reconciled their friendship at the ‘peace meeting’.
[119]
One must also not forget that unlike in the authorities I was
referred to in this matter, the accused embarked
on a campaign over a
prolonged period of time. These various incidents occurred over a
period in excess of a year, commencing in
early 2012 culminating in
the shooting of the deceased in May 2013, hardly a spur of the moment
event. The accused had sufficient
time and opportunity to reflect on
his conduct but still persisted in seeking revenge against the
deceased and ultimately conspired
with others to murder the deceased.
[120]
It was never his defence that he acted in a fit of rage or on the
spur of the moment or with any diminished responsibility,
which seems
to be the case if one has regard to the authorities to which I was
referred. These offences, in my view, were not crimes
of passion as
envisaged in the cases I was referred to.
[121]
It follows that I agree with the submission of Mr
Du Toit
that
the accused had sufficient time to reconsider his conduct. He could
have stopped early on in 2012, even after he had solicited
the
services of Professor Sithebe, but he did not. He continued,
determined as ever to seek revenge and finally rid himself of
what he
thought to be the cause of all his misery, the proverbial thorn in
his side, being the deceased. He consciously embarked
on the ultimate
revenge and conspired with others to mercilessly kill the deceased,
which can only be described as a cold-blooded
killing with no care
for the sanctity of a human life.
[122]
In addition, I do not agree with the submission of
Mr Howse
that in relation to counts 2 to 5, the deceased was not prejudiced.
He was arrested, charged and in certain instances was required
to
appear in court.
The
medical evidence
[123]
The post-mortem report
[41]
indicated that the deceased died of a perforating wound to the right
lung and the heart from a bullet. He was shot in full view
of his
receptionist and died whilst at the scene. His family attended at the
scene and would have had to wait at the scene for
his body to be
removed to the State mortuary until the police forensic investigators
had finalised their investigations at the
crime scene. His body lying
on the cold floor covered in a space blanket in full view of his
grieving family.
[124]
It is his aged father having to identify the body of his 33 year old
son the following day, being 14 May 2013,
and then having to bury his
child. They say it is the hardest thing to do ‘a parent having
to bury a child’- all the
more so one in the prime of his life.
I
now propose to deal with the interests of society.
Interests
of society
[125]
Society demands that offenders be punished for their crimes. Given
the nature of the offences which have become
endemic in our society,
the legislature saw it fit to enact the CLAA. Despite this, however,
a court must not over-emphasise one
factor and ultimately a balance
must be struck. In
S
v Kruger
[42]
the court remarked ‘[p]unishing a convicted person should not
be likened to taking revenge’. In my view, every sentence
that
must be imposed must be tempered with a degree of mercy no matter the
crime.
[126]   A
sentencing court must not over-emphasise the public interest and
general deterrence. The Supreme Court of Appeal
in
S
v Scott-Crossley
[43]
para 35 said the following:
‘
Plainly
any sentence imposed must have deterrent and retributive force. But
of course one must not sacrifice an accused person on
the altar of
deterrence. Whilst deterrence and retribution are legitimate elements
of punishments, they are not the only ones,
or for that matter, even
the overriding ones.’
[127]   The
judgment further states at para 35:
‘
It
is true that it is in the interests of justice that crime should be
punished. However, punishment that is excessive serves neither
the
interests of justice nor those of society.’
[128]   As our
courts have often said the object of sentencing is to serve the
public interest and not satisfy public
opinion. In
S
v Mhlakaza & another
[44]
Harms JA held the following:
‘
It
remains the court’s duty to impose fearlessly an appropriate
and fair sentence even if the sentence does not satisfy the
public.’
[129]
Referring to Chaskalson P in
S
v Makwanyane & another
[45]
paras 88-89 in which the court said the following:
‘
Public
opinion may have some relevance to the enquiry, but, in itself, it is
no substitute for the duty vested in the Courts. .
.This Court cannot
allow itself to be diverted from its duty to act as an independent
arbiter of the Constitution by making choices
on the basis that they
will find favour with the public.’
[130]   In
passing sentence today I will also, as I am enjoined to do, take into
account the victims’ interest in
sentencing. The South African
Law Commission summarised such interest as follows:
‘
Individual
decisions are announced to a critical public who analyse them against
a variety of expectations.
They
not
only
ask
whether the sentences express public condemnation of the crime
adequately and protect the public against future crimes by the
reform
and incapacitation of offenders
and by the deterrence of both the individual offender and other
potential offenders, but also whether the sentences are just in
the
sense that similar sentences are being imposed for offences that are
of equal seriousness or heinousness.’
[46]
[131]
If one considers the triad of
Zinn
any sentence imposed must
contain an element of mercy. Such entails a balanced and humane
approach to the consideration of an appropriate
punishment and
demonstrates that there is no room for vengefulness or a vindictive
approach to sentencing.  Although the interests
of society,
specifically the nature of the offences, pose great challenges
insofar as sentencing is concerned, one must not lose
sight of the
fact that this was the accused’s first brush with the law.
[132]   I will
be mindful of the fact that when sentence is passed today that the
victim with reference to count 1, has
been robbed of his life.
Whatever sentence is therefore imposed today should give recognition
to the fact that he was a husband,
father, son, brother, uncle,
doctor and also a useful member of society and that he had hopes and
expectations which were abruptly
brought to an end when he was
callously shot. The importance of due individual recognition was
aptly stated by Justice O’Connor
in
Payne
v Tennessee
[1991] USSC 131
;
501 U.S. 808
(1991) at 832:
[47]
‘“
Murder is the ultimate
act of depersonalization.”. . .It transforms a living person
with hopes, dreams, and fears into a corpse,
thereby taking away all
that is special and unique about the person. The Constitution does
not preclude a State from deciding to
give some of that back.’
Conclusion
[133]
In deciding on an appropriate sentence, I have weighed both the
mitigating and aggravating factors. In considering
these and the
nature of the offences, the interests of society, the victims and the
accused, I am of the view that to impose the
prescribed minimum
sentence would be disproportionate and unjust. I acknowledge that
these are serious offences warranting a long
term of imprisonment,
specifically in relation to count 1, but I must also not lose sight
of the fact that it is my duty to balance
all factors and come to a
just sentence (see
Director of Public Prosecutions, KwaZulu-Natal
v Ngcobo & others
2009 (2) SACR 361
(SCA) para 22).
[134]
When I consider the personal circumstances of the accused and his
age, to impose the minimum sentence for the
offence specifically in
relation to count 1, I must also consider the cumulative effect of
the sentences on multiple counts as
this is a factor which must also
be considered.
[135]
In
Rammoko
v Director of Public Prosecutions
[48]
the Supreme Court of Appeal recognised life imprisonment as the
ultimate sentence a person can be legally obliged to serve and
taking
due cognisance of that fact, the sentencing court must not, on the
one hand, lightly hold that substantial and compelling
circumstances
exist on unsubstantiated grounds, nor should the sentencing court, on
the other hand, hesitate too long to find that
substantial and
compelling circumstances exist when this appears to be the position.
[136]
Of relevance to the
determination of an appropriate sentence is the fact that the murder
in count 1 was planned and premeditated.
In this regard
S
v Raath
[49]
para 16 is apposite:
‘
Planning
and premeditation have long been recognised as aggravating factors in
the case of murder.’
[137]
In this matter, given the circumstances under which the offences in
counts 2 to 5 occurred, they are closely related
to count 1 and I
must consider the cumulative effect of the sentences imposed.
In
respect of count 6, it stands on its own as it was a separate
incident.
[138]
In coming to an appropriate sentence in respect of the various
counts, I have borne in mind the following, namely:
(a)
in
respect of count 1, the offence is murder read with s 51 Part I and
Schedule 2 of the CLAA;
(b)
in
respect of counts 2 to 5, these offences formed part of the scheme
which the accused and others embarked on to force, humiliate
and
denigrate the deceased in the hope that they would drive him from
Pietermaritzburg. The failure of these schemes culminated
in the
commission of the offence in count 1;
(c)
in
respect of count 6, the accused conspired with Professor Sithebe to
murder the deceased;
(d)
these
events occurred over a period in excess of 18 months;
(e)
the
accused had sufficient time to call a halt to the schemes and put the
past behind him, yet he did not and the offences were
carefully
planned and thought out and carefully monitored by him to ensure they
succeeded especially in respect of count 4;
(f)
two
families have been affected by this tragedy, the family of the
deceased but also the family of the accused, their lives irreversibly

altered forever;
(g)
no sentence
will ever bring back the deceased. Whilst this may be cold comfort to
the family of the deceased, I am reminded of what
the court stated in
S v
Rabie
[50]
namely that the punishment should fit the criminal as well as the
crime, be fair to society and that it should be blended with
a
measure of mercy according to the circumstances of the case.
[139]
The sentences imposed must also give recognition to the justifiable
abhorrence invoked by the callousness of the
offences, whilst not
destroying the accused on the altar of general deterrence. Having
carefully considered all of the submissions,
both oral and written
and the authorities to which I was referred, I am persuaded that this
is a case that I should depart from
and not impose the prescribed
minimum sentence in count 1 and impose a determinate sentence for the
following reasons, namely the
age of the accused, the fact that he is
a first offender, a useful member of society, he is relatively young
and the possibility
of rehabilitation cannot be excluded and that he
also built a successful business. When viewed holistically and when
considering
all the submissions placed before the court, including
the reports submitted in exhibit ‘MMMM’, it would be
disproportionate
and unjust to impose life imprisonment.
[140]
I also take into account that in respect of count 4, the evidence
proved showed that the accused made a concerted
effort to ensure that
these charges against the deceased would result in a successful
prosecution given what transpired in relation
to the count involving
Mariamma Kisten. The offence in count 6 did not involve the same
individuals in counts 1 to 5.
[141]
Taking into account and having carefully considered all the written
and oral submissions of the State and defence,
the documents
submitted, the personal circumstances of the accused, the victim
impact statement, the interests of society, as well
as the
administration of justice I must always endeavour to temper any
sentence with an element of mercy.
[142]
I am of the view the following sentences are appropriate:
(a)
In respect of
count
1
:
Murder, read with s 51(1) and Part I of Schedule 2 of the
Criminal
Law Amendment Act 105 of 1997
, the accused is sentenced to 25 years’
imprisonment.
(b)
In respect of
count
2:
Defeating or obstructing the course of justice, the accused is
sentenced to 18 months’ imprisonment.
(c)        In respect of
count
3
: Defeating or obstructing the course of justice, the accused is
sentenced to 18 months’ imprisonment.
(d)       In respect of
count 4
:
Defeating or obstructing the course of justice, the accused is
sentenced to 2 years’ imprisonment.
(e)       In respect of
count 5
:
Assault with intent to do grievous bodily harm, the accused is
sentenced to 18 months’ imprisonment.
(f)        In respect of
count
6
: Conspiracy to commit murder, the accused is sentenced to 5
years’ imprisonment.
(g)
In light of the cumulative effect of the sentences imposed, it is
ordered that the sentences
imposed on counts 2 to 5 are to run
concurrently with the sentence imposed on count 1. Thus the accused
is sentenced to an effective
30 years’ imprisonment.
(h)
The National Commissioner for Correctional Services is directed to
ensure that a social
worker in the employ of the Department for
Correctional Services visits the children of the accused, Mr Soni,
regularly during
his incarceration, and submits reports to the office
of the National Commissioner as to whether the children of the
accused are
in need of care and protection as envisaged in
s 150
of
the
Children's Act 38 of 2005
and, if so, to take the steps
required by that provision.
(i)
The Department of Correctional Services is to give consideration to
the recommendation
in the report of Floss Mitchell relating to the
manner in which contact visits between the accused and the minor
children are to
take place and to, where possible, facilitate the
assistance of a social worker during such visits.
(j)
The accused is automatically declared unfit to be licensed for a
firearm in
terms of the provisions of the Firearms Control Act and I
accordingly make no order in this regard.
Henriques
J
Case
Information
Date
of argument:

21 September 2018
Sentence
handed down on:

26 October 2018
Appearances
Counsel
for the State:

Mr J Du Toit
Instructed
by:

The Director of Public Prosecutions, KZN
Counsel for the
accused:

Mr C van Schalkwyk SC
and
Mr J Howse
Instructed
by:

Ayoob Attorneys
Suite 2, SDC Centre
495 Church Street
Pietermaritzburg
[1]
S v EN
2014
(1) SACR 198
(SCA) para 14.
[2]
S v Rees
1984 (1) SA 468
(W) at 470A-B.
[3]
S v Zinn
1969 (2) SA 537 (A).
[4]
S v Malgas
2001 (1) SACR 469
(SCA); s 51(3) of the CLAA.
[5]
S v Vilakazi
2009 (1) SACR 552 (SCA).
[6]
S v Ramba
1990 (2) SACR 334
(A) at 341i-342a.
[7]
S v Khumalo
2013 (1) SACR 96
(KZP);
S v
Caleni
1990 (1) SACR 178
(C) at 181e-f and
S v
Olivier
2010 (2) SACR 178
(SCA).
[8]
Page 23 exhibit ‘MMMM’.
[9]
Pages 1 and 2 exhibit ‘MMMM’.
[10]
Exhibit ‘NNNN’.
[11]
Pages 18 to 20 exhibit ‘NNNN’.
[12]
Page 7 exhibit ‘MMMM’.
[13]
Page 24 exhibit ‘MMMM’.
[14]
Page 25 exhibit ‘MMMM’.
[15]
Pages 26 and 27 exhibit ‘MMMM’.
[16]
Pages 5 and 6 of exhibit ‘MMMM’.
[17]
Although reference is to the
defendant, there appear to be typographical errors in the agreement.
[18]
Pages 6 and 7 paras (vii) to (viii)
exhibit ‘MMMM’.
[19]
Pages 9 to 16 exhibit ‘MMMM’.
[20]
Page 17 exhibit ‘MMMM’.
[21]
S v Stokes
case
number CC233/05, unreported judgment delivered on 22 March 2017,
KwaZulu-Natal High Court, Durban.
[22]
S v Khwela
2001 (1) SACR 546
(N) at 547d-550b.
[23]
S v Meyer
1981 (3) SA 11
(A) at 16G-H and 17B-F.
[24]
S v Shoba
1982 (1) SA 36
(A) at 41A-B.
[25]
S v Hlatswayo & another
case number CC37/2015, unreported judgment of Madondo DJP,
KwaZulu-Natal High Court, Northern Circuit.
[26]
S v Mathe
2014 (2) SACR 298 (KZD).
[27]
Director of Public Prosecutions v
Mngoma
2010 (1) SACR 427
(SCA).
[28]
S v Mnisi
2009 (2) SACR 227 (SCA).
[29]
S v Ferreira & others
2004 (2) SACR 454 (SCA).
[30]
Exhibit ‘LLLL’.
[31]
S
v
Berliner
1967
(2) SA 193
(A).
[32]
S
v
C
1996 (2) SACR 181
(C) at 186a-b.
[33]
S v Brand
1998 (1) SACR 296
(C) at 299i-j.
[34]
S v Matyityi
2011 (1) SACR 40
(SCA) para 13.
[35]
S v
Hewitt
2017 (1) SACR 309
(SCA) para 16.
[36]
S v M (Centre for Child Law as
Amicus Curiae)
2007 (2)
SACR 539 (CC).
[37]
MS v S (Centre for Child Law as
Amicus Curiae)
2011 (2)
SACR 88 (CC).
[38]
S
v
Chetty
2013 (2) SACR 142 (SCA).
[39]
MS v S
above.
[40]
S v Howells
1999 (1) SACR 675 (C).
[41]
Exhibit ‘D1’.
[42]
S v Kruger
2012
(1) SACR 369
(SCA) para 11.
[43]
S v Scott-Crossley
2008
(1) SACR 223 (SCA).
[44]
S v Mhlakaza & another
1997
(1) SACR 515
(SCA) at 518f-g.
[45]
S v Makwanyane & another
[1995] ZACC 3
;
1995 (2) SACR 1
(CC).
[46]
The South African Law Commission ‘New
Sentencing Framework’ Project 82 (November, 2000) para 1.2.
[47]
Payne v Tennessee
[1991] USSC 131
;
501 U.S. 808
(1991) at 832.
[48]
Rammoko v Director of Public
Prosecutions
2003 (1) SACR
200 (SCA).
[49]
S v Raath
2009 (2) SACR 46
(C).
[50]
S v Rabie
1975 (4) SA 855
(A).