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[2018] ZAECMHC 29
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S v Makawula and Others (CC08/2016) [2018] ZAECMHC 29 (1 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO.
CC08/2016
THE
STATE
Vs
STATA
MAKAWULA
ACCUSED NO. 1
NKOSIPHENDULO
MAKAWULA
ACCUSED NO. 2
ABONGILE
MAKAWULA
ACCUSED NO. 3
JUDGMENT
ON SENTENCE
JOLWANA
J
[1]
The accused were charged with 1 count of murder in contravention of
section 84 of Act 9 of 1983 read with section 51(2)
of Act 105 of
1997. It was alleged that upon or about the 12 September 2015
and at or near Mngazana Administrative Area in
the district of
Elliotdale, the accused unlawfully and intentionally killed Sixolile
Bomvu by stabbing him.
[2]
Accused No.1 and 3 pleaded guilty to assault with intent to do
grievous bodily harm, which is a competent verdict for a charge
of
murder. The pleas were duly accepted by the state. It
appears from the statements in terms of
section 112
(2) of the
Criminal Procedure Act 51 OF 1977
that all the accused were related
to the deceased.
[3]
The factual matrix is that there was a traditional function at a
relative’s neighbouring homestead in which alcohol was
consumed. The deceased had a quarrel with one Nkanyiso Mboxo
and accused No. 1 intervened as a result of which the deceased
tried
to stab accused No. 1 but missed him but the knife went through his
shirt thus tearing it. Other members of the community
intervened and the deceased stopped attacking accused No.1.
[4]
Later that night while accused No. 1 was sleeping at his home he
received a telephone call from a person who rented a tuck shop
in his
homestead who told him that the deceased had come and broken a
window. When he went to investigate the deceased had
already
left. He was informed by one of his sons that the deceased and
another person were looking for him. He then
telephoned the
deceased’s father and another elder member of the community so
that the matter could be discussed and resolved.
The deceased’s
father came together with the deceased, accused No.1’s two sons
who are accused No. 2 and 3 and one
Mthobela Mbesenti, a member of
the community. When they arrived he was waiting for them near
the tuck shop in his premises.
When he saw the deceased he was
overcome with anger and assaulted the deceased with a baton to
chastise him as a child and relative.
He had no idea how
accused No. 2 got hold of a knife nor did he see him when he stabbed
the deceased.
[5]
What seems to have resulted in accused No.3 participating in the
assault on the deceased as reflected in his own plea statement
in
terms of
section 112
(2) is, as he put it, witnessing a young
man of his age, the deceased, insulting and assaulting his father,
accused No.1
in his presence at their own home. He became angry
and assaulted the deceased with a stick that he had in his
possession.
[6]
Accused No. 2 participated in the assault with a stick on the
deceased under the same circumstances as his co accused who are
his
father and brother. However, when a knife fell from one of them
he picked up the knife and stabbed the deceased with
that knife.
According to the post mortem report which was admitted into the
record, the cause of death was thoracic injuries-sharp
instrument.
This is consistent with accused No. 2’s acknowledgement of
having stabbed the deceased to death which he
made in his
section 112
(2) statement.
[7]
These are more or less the circumstances in which the accused pleaded
guilty to assault with intent to do grievous bodily harm
in respect
of accused No. 1 and 3 and murder in respect of accused No. 2.
Having fully acknowledged their participation in
the events that took
place on the night of the 12 September 2015 which resulted in the
death of the deceased and the state having
accepted all their plea
statements in terms of
section 112
(2) accused No.1 and 3were found
guilty of assault with intent to do grievous bodily harm and murder
in respect accused No. 2.
[8]
Having been convicted the accused must now be sentenced. In
Director of Public Prosecutions, KwaZulu Natal v P
2006 (1)
SACR 243
(SCA) 243 at 250 para 13 the traditional approach to
sentencing was explained in the following terms:
“
The
so-called traditional approach to sentencing required (and still
does) the sentencing court to consider the triad consisting
of the
crime, the offender and the interests of society. In the
assessment of an appropriate sentence, the court is required
to have
regard to the main purpose of punishment, namely, the deterrent,
preventive, reformative and the retributive aspects thereof.
To
these elements must be added the quality of mercy, as distinct from
mere sympathy for the offender.”
[9]
The circumstances of these crimes are rather peculiar in that they
were clearly never meant to happen but for the state of inebriation
in which the deceased was and his apparently provocative approach to
what accused No. 1 considered a necessary intervention that
he needed
to make to stop the fight between the deceased and Nkanyiso Mboxo who
was to be stabbed by the deceased but for the intervention
of accused
No. 1. This is what appears to have caused the deceased to go
around looking for accused No. 1 resulting in him
going to accused
No. 1’s home where he broke a window.
[10]
That intervention resulted in the deceased attempting to stab accused
No.1 narrowly missing him and the knife tearing accused
No. 1’s
shirt.
[11]
Accused No. 1 did what was to be expected of him not only as an
elderly member of the community but also as a headman in the
area.
He called the father of the deceased to come to his homestead
together with the deceased and one Mr Mbesenti to discuss
the matter
and to resolve it amicably. By his own admission when he saw
the deceased he was overcome with anger and assaulted
the deceased
with a baton with accused No. 2 and 3 joining in the assault on the
deceased with a stick. These assaults do
not find mention in
the post mortem report nor are they indicated as possible
contributors to the death with the cause of death
being indicated as
having been thoracic injuries inflicted with a sharp instrument.
[12]
Besides the fact that accused No. 1 and 3 themselves have pleaded
guilty to assault to do grievous bodily harm, there is no
evidence
which suggests that in fact the deceased was injured from the
assaults inflicted upon him by accused No. 1 and 3.
On the
contrary the post mortem report does not point out to any other
injuries sustained on the deceased other than the stab wounds
which
were inflicted by accused No. 2.
[13]
There is no minimum sentence applicable in respect of the crimes for
which accused No. 1 and 3 have been convicted. The
circumstances in which the crimes were committed as well as the fact
that the accused pleaded guilty to the crimes and as such
did not
waste court’s time are a clear indication of remorsefulness on
their part. This is in addition to the fact
that they are all
first offenders with accused No. 1 being over sixty years of age
without having been convicted of any offences
at all throughout his
life. Counsel for the state conceded, correctly in my view that
custodial sentences would not be appropriate
for accused No. 1 and 3.
[14]
Something else needs to be said about accused No. 2 which is peculiar
to him. That is the fact that by his own admission
there was no
reason for him to use the knife that fell. The fact that he
opportunistically decided to take it and use it
to stab a person who
was, at the time of the stabbing and by his own admission, posing no
danger to him is a matter of serious
if not grave concern.
[15]
As Ms Govender, counsel for the state correctly points out in her
heads of argument it is not without significance that the
deceased
was stabbed not once but 13 times. All of those wounds were
directed in the chest and abdomen area with the result
that the
possibility of all of them being singulary potentially fatal looms
large. The fact that accused No. 2 decided to
inflict 13 of
those potentially fatal wounds makes his situation worse and would
have shocked the community and caused immense
pain to the family of
the deceased.
[16]
Mr Mthembu argued that compelling and substantial circumstances
existed as would result in the court being persuaded to deviate
from
the minimum sentence in terms of section 51(2) of the Criminal Law
Amendment Act.
[17]
Section 51(2) reads as follows:
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
who has been convicted
of an offence referred to in-
(a)
Part
II of Schedule 2, in the case of –
(i)
a first offender to imprisonment for a period not less than 15 years
(3)
(a) If any court referred to in subsection (1) or (2) is satisfied
that substantial and compelling circumstances exist which
justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances
on the record of the
proceedings and must thereupon impose such lesser sentence.”
[18]
Accused No. 2’s counsel argued very strongly that this court
must depart from the minimum sentence and impose a lesser
sentence.
Before I deal with his submissions I must look at what our
courts have said about “
substantial and compelling
circumstances”
.
[19]
In
S v Malgas
2000 (2) SA 1222
(SCA) at para 25 it was stated
that:
“
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.
In
summary:
A.
Section 51 has limited but not eliminated the court’s
discretion in imposing sentence in respect of offences referred to
in
Part 1 of Schedule 2 (or imprisonment for other specified periods for
offences listed in other parts of Schedule 2).
B.
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprisonment (or
the
particular prescribed period of imprisonment) as sentence that should
ordinarily and in the absence of weighty justification
be imposed for
the listed crimes in the specified circumstances.
C.
Unless there are and can be seen to be truly convincing reasons for a
different response, the crimes in question are therefore
required to
elicit a severe standardised and consistent response from the
courts.”
[20]
In this case the accused has chosen not to testify in mitigation of
sentence and being fully aware of the seriousness of the
offence for
which he has been convicted did not testify to convince the court
about the substantial and compelling circumstances
on the basis of
which he wants the court to depart from the minimum sentence of 15
years.
[21]
In
Lichtenstein v S
[2016] ZASCA 132
writing for the full
court Seriti JA had this to say:
“
16.
In his section 112 (2) statement, the appellant stated that he is
sorry and deeply regrets his wrongful action. He chose
not to
testify and his bold statement that he is sorry and regrets his
actions could not be tested.
17.
The statement made by the appellant in his s 112 (2) statement to the
effect that he is sorry and deeply regrets his wrongful
actions
cannot be tested and therefore cannot be of any assistance to the
appellant.
18.
The appellant’s counsel further submitted before this court
that at the time of the commission of these offences, the
appellant
was highly intoxicated and under the influence of drugs. This
submission is misplaced. The statement of the
appellant in
terms of section 112 only states that the appellant, his co accused
and the deceased were consuming alcohol.
There is no evidence
which indicates that the appellant was intoxicated nor how long they
had consumed the alcohol nor to what
extent the appellant was
affected by the alcohol. There is also no evidence that the
appellant was under the influence of
drugs. In my view in the
circumstances of this case the fact that the deceased consumed
alcohol cannot be regarded as a mitigating
factor.”
[22]
In this case it appears from the 112 statement of accused No. 2 that
they were coming from their father’s uncle’s
place where
they were consuming alcohol. Other than that there is nothing
to suggest that they were in fact drunk or what
their state of
intoxication was. What is also clear though is that they did
notice that the deceased who was his relative
and friend was drunk.
Clearly and in the circumstances of this case the fact that accused
No.2 had consumed alcohol cannot,
without more, be a mitigating
factor. If anything the fact that the deceased was drunk and
they noticed that he was in fact
drunk is an aggravating factor.
[23]
I must now dealt with the personal circumstances of accused No. 2 in
respect of which he has listed no less than ten.
There is
nothing compelling and substantial about those circumstances.
In any event, being personal circumstances they are
not on their own,
paramount in light of the seriousness of the offence.
[24]
In the Lichtenstein case above at paragraph 19 and 20 the court
stated that:
“
[19]
The appellant’s counsel submitted that in imposing the
prescribed minimum sentences the trial court erred in not finding
that the factors advanced in mitigation of sentence constituted
substantial and compelling circumstances which justify a deviation
from the prescribed minimum sentences. This submission is
without merits.
[20]
In
S v Vilakazi
2009 (1) SACR 552
(SCA) paras 58, Nugert JA
observed that:
‘
In
cases of serious crime the personal circumstances of the offender by
themselves, will necessarily recede into the background.’
The
appellant was convicted of serious crimes and his personal
circumstances must recede into the background. The personal
circumstances of the appellant pale into insignificance when the
offences committed by him are considered. That being the
position, there are no other factors which can justify the imposition
of sentences lesser than the prescribed minimum sentences.”
[25]
In his heads of argument Mr Mthembu went to great lengths about the
fact that the form of intent with which accused No. 2 acted
when
committed the offence for which he has been convicted is that of
dolus eventualis
and not
dolus directus
. In my
view and to the extent that the submission is not that in cases where
the form of intent is
dolus eventualis
the court is obliged to
depart from the prescribed minimum sentence that submission does not
take the matter any further.
I find that there were no
substantial and compelling circumstances that would justify a
departure from the prescribed minimum sentence.
[26]
Furthermore I am not aware of any authority for the proposition that
dolus eventualis
is on its own, a substantial and compelling
circumstance that must entitle an accused to a reduced sentence and I
have not been
referred to any. The authorities to which I have
been referred do not say that and therefore it would be stretching
what
the court said in those cases were it to be said that they say
dolus eventualis,
without more, is a basis for departing from
a minimum sentence that the legislature has prescribed. This Mr
Mthembu conceded
and correctly so in my view.
[27]
In the result the accused are sentenced as follows:
1.
Accused No. 1 is sentenced to 2 years imprisonment which sentence is
suspended for a period of 2 years on condition that
the accused is
not convicted of assault with intent to do grievous bodily harm
during the period of suspension.
2.
Accused No. 2 is sentenced to undergo 15 years imprisonment.
3.
Accused No. 3 is sentenced to 3 years imprisonment which sentence is
suspended for 5 years on condition that the accused
is not convicted
of assault with intent to do grievous bodily harm during the period
of suspension.
_____________________
MS
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State: A. GOVENDER
Instructed
by: NDPP
MTHATHA
Counsel
for Accused No. 1 & 2: I.B. MTHEMBU
Counsel
for Accused No. 3: M. MAHLOMBE
Instructed
by: LEGAL AID BOARD
MTHATHA
Matter
heard on: 30 May 2018
Judgment
handed down on: 01 June 2018