About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2016
>>
[2016] ZALMPPHC 13
|
|
S v Manzuzu (CC43/2016) [2016] ZALMPPHC 13 (16 November 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: HGH:CC43/2016
In
the matter between:
THE
STATE
And
MENIAS
MANZUZU
ACCUSED
JUDGMENT
CHIDI,
AJ
:
INTRODUCTION
[1]
Accused,
a 23 year old male Zimbabwean citizen residing at Masakaneng Section,
Ga-Kgapane, appeared before this court on 14 November
2016 on the
following counts:
1.1.
Count
1: House breaking with intend to rob;
1.2.
Count
2: Robbery with aggravating circumstances as defined
in Section 1 (1) of the
Criminal Procedure Act 51 of 1977 (CPA) read with Section 51 (2) of
the Criminal Law Amendment Act 105 of
1997 (Minimum Sentence Act);
1.3.
Count
3: Murder read with the provisions of Section 51 (1) of
the
Minimum Sentence Act;
1.4.
Count
4: Contravening of Section 9 (1) read with Section 49
(1)
(
a
)
of the Immigration Act 13 of 2002 (Immigration Act);
1.5.
Count
5: Contravening Section 9 (3) (
a
)
read with
Section 49
(1)
of the
Immigration Act.
[2
]
The
State withdrew counts 1, 4 and 5 before the accused pleaded.
Consequently the accused pleaded only to counts 2 and 3, i.e robbery
with aggravating circumstances and murder read with the provisions of
Section 51 (1) of the Minimum Sentence Act:
2.1.
Count
2
:
It is alleged that in
that upon or about 22 September 2015 and at or near Modjadjiskloof
in the District of Tzaneen, the accused
did unlawfully and
intentionally assault
NUR HUSSEN MAHOMED
, and did then and
with force take the following items from him, to wit: three (3)
cellphones (2 Samsung and 1 Nokia) and clothes;
the property of or in
the lawful possession of
NUR HUSSEN MAHOMED
aggravating
circumstances present in that the deceased in count 3 was chopped
with a panga during the commission of the offence.
2.2.
Count
3
It is
alleged that in that upon or about 22 September 2015 and at or near
Modjadjiskloof in the District of Tzaneen, the accused
did unlawfully
and intentionally chop
NUR HUSSEN MAHOMED,
an adult male
person with a panga as a result of which he sustained cut wounds
which caused his death on 28 September 2015 at Kgapane
Hospital.
[3]
The
accused is legally represented by Adv N.L. Mathaba from Polokwane
Justice Centre.
THE
PLEA
[4]
The
accused pleaded guilty, and his legal representative prepared
statement in terms of Section 112 (2) (
b
)
of the CPA which was read into the record and explained to the
accused in his home language, Shona. The accused admitted the
contents of the statement in terms of Section 112 (2) (
b
)
which he signed together with his legal representative.
[5]
The
accused admitted all the elements of the offence and that he
unlawfully and intentionally committed the offences.
[6]
I
then found the accused guilty on counts 2 and 3, as preferred against
him.
[7]
The
case was then adjourned for mitigation and sentence.
[8]
I
am grateful to both the counsel for the State and defence with the
well prepared arguments presented during mitigation and aggravation
of sentence.
THE
SCHEME OF SENTECING
[9]
In
exercising its discretion the trial court is required to consider the
principles known as the “triad of
Zinn
[1]
”
where the court held that in imposing a sentence, what has to be
considered is a triad consisting of the crime, the offender
and the
interests of society. This triad gave rise to three general
guidelines in the development of a sentence: the seriousness
of the
offence, the personal circumstances of the offender, and the public
interest.
[10]
As
Snyman
[2]
states that there ought to be a healthy balance between these three
considerations. A court should not emphasise any one of them
at the
expense of the others.
[11]
As
the accused faces offences that fall within the purview of the
Minimum Sentence Act, the proviso in following the prescribed
minimum
sentence is the existence of the substantial and compelling
circumstances. In
S
v Van Wyk
[3]
it was held that substantial and compelling circumstances must
include those which previously were referred to as mitigating
circumstances, and which include all the circumstances which might
indicate a diminished moral blameworthiness on the part of the
offender. It was decided in
S
v Malgas
[4]
that:
“
It
has been suggested that the kind of circumstances which might qualify
as substantial and compelling are those which reduce the
moral guilt
of the offender (analogously to the circumstances considered in
earlier times to be capable of constituting ‘extenuating
circumstances’ in crimes which attracted the sentence of
death). That will no doubt often be so but it would not be right
to
suppose that it is only factors diminishing moral guilt which may
rank as substantial and compelling circumstances.”
MITIGATION
OF SENTENCE AND AGGRAVATING CIRCUMSTANCE
[12]
Mitigating
Factors
12.1
The following have been submitted as the accused’s mitigating
factors:
12.1.1
He is
23 years old;
12.1.2
He
married at the age of 19 and they are blessed with one child who is
4years old;
12.1.3
His
wife is unemployed;
12.1.4
The
wife and the child were staying with the accused at the time of his
arrest;
12.1.5
He is
an orphan;
12.1.6
He is
not formally employed but survives on “odd jobs”, from
which he receives R500.00 on a good month;
12.1.7
He is
also supporting and maintaining his siblings who live in Zimbabwe
with the money he receives from his “odd jobs”;
12.1.8
His
wife and child have relocated to Burgersfort after his arrest;
12.1.9
He
relocated to South Africa in 2008 for greener pastures;
12.1.10
He
pleaded guilty on his first appearance before the trial court which
is a sign of remorse;
12.1.11
He
took responsibility for his actions by pleading guilty;
12.1.12
He
was staying in Giyani during 2012; but his friend invited him to
Bolobedu area as there were according to the friend “better
piece jobs”. He did not know that the friend was referring to
“illegal piece jobs”;
12.1.13
He
was influenced by that friend of his to commit offences as a means to
survive;
12.1.14
There
is a likelihood of the accused being rehabilitated; therefore the
court should impose a lesser sentence;
12.1.15
The
accused during consultation with his legal representative on his own
decided to admit guilt;
12.1.16
He
cooperated with the police at the time of his arrest;
12.1.17
The
period he spent in custody while awaiting trial, being from 18
December 2015 should be considered;
12.1.18
The
counts should be taken as one for purposes of sentence;
12.1.19
He
is not a hardened criminal but only acted through the influence of
friends;
12.1.20
He
can be joined with the society after serving sentence of at least 10
years;
12.2.
The fact that he is a first offender in respect of the murder charge
and all of the above factors should be considered as
substantial and
compelling circumstances, so it was submitted.
[13]
The circumstances of this case
.
13.1.
It
was submitted by the defence that on the date of the incident the
accused and his friends went to the deceased house. Whilst
there they
all entered and the accused committed the offences. He stole the
cellphones and clothes and murdered the deceased by
chopping him with
a panga.
13.2.
After
chopping the deceased he started to feel remorseful as he assisted
the deceased to sit down and stop the bleeding but as he
was not sure
as to who else was in the house he ran away.
13.3.
He
realised R 300.00 from the sale of the stolen cellphones.
[14]
Aggravating factors
14.1.
On the other hand the State submitted the following as aggravating
factors:
14.1.1. The accused was
convicted of very serious offences;
14.1.2.The
deceased came to South Africa as an asylum seeker being a Ethiopian
national;
14.1.3.He
is survived by two widows and 7 children;
14.1.4.He
was also maintaining and supporting his mother and sister who is
widowed;
14.1.5.His
children are no longer attending school as there is no one to pay for
their school fees.
14.1.6.The
deceased was a business man who employed five local people; these
people have now lost employment after the death of
the deceased.
14.1.7.
The
wives and the children have returned to Ethiopia after the death of
the deceased;
14.1.8.
The
brother expended the sum of R160 000,00 for the repatriation of the
remains of the deceased and transport of the family;
14.1.9.
The
stolen items were not recovered;
14.1.10.
The
accused spent less than a year in custody awaiting trial and there
were valid reasons for keeping him in custody while awaiting
trial;
14.1.11.
In
terms of Section 51 (2) of the Minimum Sentence Act with regard to
count 2, robbery with aggravating circumstances; the prescribed
sentence is not less than 15 years for a first offender;
14.1.12.
In
respect of count 3, murder, Section 51 (1) prescribes that life
sentence shall be imposed, unless the court is satisfied that
substantial and compelling circumstances exist upon which the court
may deviate from the prescribed sentence.
14.1.13.
The
offence of murder was committed during the robbery. This murder was
planned as the accused armed himself with a panga, a dangerous
weapon, with the aim to overcome any resistance.
14.2
The
State presented the following arguments in support of the appropriate
sentence:
14.2.1
That
as stated in
S
v Malgas
[5]
that the prescribed sentence shall be imposed unless there exist
substantial and compelling circumstances to impose a lesser sentence.
The court need not deviate from the prescribed sentence for flimsy
reasons;
14.2.2
The
offences are very much serious taking into account the extent of the
violence involved in the commission of the offences;
14.2.3
The
cruelty and brutality of the attack as depicted in the photo album
which show that there was blood all over house;
14.2.4
Most
of the deceased’s injuries were on his arms as he was trying to
ward off the attack;
14.2.5
That
there was careful planning, which should be considered as stated in
S
v Mnguni
[6]
;
14.2.6
The
previous conviction of theft which is related to the offence of
robbery should also be considered as aggravating circumstance.
14.2.7
The
motive to commit the offences was greed;
14.2.8
The
fact that accused pleaded guilty should not be considered as a sign
of remorse because he realised that there was overwhelming
evidence
against him;
14.2.9
The
accused decided not to testify which would have counted in his
favour;
14.2.10
The
age of the accused should not be taken as a mitigating factor in that
at the time of the commission of the offence he was over
the age of
18 years which is the age of majority;
14.2.11
The
accused was aware that he would put his family at risk when he
committed the offences; so the fact that he is a breadwinner
should not be considered;
14.2.12
There
is no evidence that the level of education influenced him to commit
the offences;
14.3
It
was submitted that the offences should not be taken as one for
purposes of sentences on the basis that where life sentence is
to be
imposed the concurrency principle cannot be applied. On this aspect I
was referred to the decided case of
S
v Mashava
[7]
.
[15]
The defence submitted that the accused should be declared unfit to
possess a firearm in terms of Section 103 of
the Firearms Control
Act
[8]
.
INTERESTS
OF THE SOCIETY
[16]
The State contended that the offences were committed at
Modjadjiskloof which is a small area but the crime statistics
are
very much alarming. The deceased had employed five local people who
were supporting their families with the salaries received
from the
deceased.
[17] The
bereaved family which is part of the society is still grieving over
the passing on of the deceased.
LEGAL
PRINCIPLES
[18]
The accused was also convicted of murder as contemplated in Section
51 (1) of the Minimum Sentence Act. The accused
took away the very
sacrosanct right the deceased had. The right to life is guaranteed in
the Constitution. O’ Regan J in
S
v Makwanyane
and Another
[9]
stated
that:
“
The
right to life is, in one sense, antecedent to all the other rights in
the Constitution. Without life in the sense of existence,
it would
not be possible to exercise rights or to be the bearer of them. But
the right to life was included in the Constitution
not simply to
enshrine the right to existence. It is not life as mere organic
matter that the Constitution cherishes, but the right
to human life:
the right to live as a human being, to be part of a broader
community, to share in the experience of humanity. This
concept of
human life is at the centre of our constitutional values. The
constitution seeks to establish a society where the individual
value
of each member of the community is recognised and treasured. The
right to life is central to such a society.”
[19]
Consequently, to kill or to condone the killing of a person thus
amounts
to an infringement of the guaranteed right to life.
[20]
The accused was convicted of robbery with aggravating circumstances.
The court in
S
v Valley
[10]
reflected on the seriousness of the offence of robbery with
aggravating circumstances and stated that:
“
The
crimes which the appellant committed are extremely serious. We live
in a society which is becoming increasingly lawless; firearms
are
frequently used in robberies and victims are not uncommonly shot to
death or badly wounded. Persons who perpetrate such crimes
must be
punished severely. Society demands this and it is absolutely
necessary that the message go out to the world that people
who commit
these sorts of crimes will be dealt with severely.”
[21]
I must determine whether substantial and compelling circumstances
exist which may enable me to deviate from the prescribed
minimum
sentence.
[22]
The accused is a first offender on the murder charge. He is of
course 23 years of age and a family man; his daughter
is four years
old.
[23]
He pleaded guilty on the first day of the trial.
[24]
In the commission of the offences the accused used a panga to hack
the deceased. The deceased did not die at the
scene of the crime but
was taken to the hospital where he succumbed to the injuries days
later.
[25]
This is a reflection of the pain and suffering the deceased endured
as a result of the horrendous conduct of the
accused.
[26]
In
S
v Matyityi
[11]
it was stated that:
“
Whilst
someone under the age of 18years is to be regarded as naturally
immature, the same does not hold true for an adult. In my
view a
person of 20 years or more must show by acceptable evidence that he
was immature to such an extent that his immaturity can
operate as a
mitigating factor
.”
[27]
In
S
v Krieling And Another
[12]
it was decided that:
“
While
it is a salutary principle of sentencing that a first offender
should, as far as possible, be kept out of prison, it is well
recognized that in appropriate cases first offenders may, and indeed
should, be incarcerated. Whether or not imprisonment is indicated
depends essentially upon the facts of each particular case. It is
true that imprisonment will cause the appellants great hardship.
It
will effectively terminate their careers, they will probably lose
their homes, their families will unfortunately suffer and
they will
be exposed to all the negative influences of prison - possibly even
to acts of revenge and vindictiveness by certain
elements in prison
in consequence of their previous police connections. One is not
unmindful of these considerations. No court
would deliberately seek
to harm a convicted person or cause him undue hardship - no
enlightened system of justice would tolerate
that. But harm or
hardship may be the unavoidable consequence of an otherwise fair and
proper sentence. A balanced approach to
sentencing requires that not
only the appellants’ personal circumstances and the potential
hardship to them be given due
weight, but also the nature of their
crime and the interests of the community.”
[28]
On that basis the fact that the accused is a first time offender will
not count in his favour in the circumstances
of this case.
[29]
The accused argues that he committed the crimes because he did not
have work and he needed to support and maintain
his family. This
argument is unsound; a person cannot kill in order to maintain his or
her family. If that were to be the situation
then the haves would die
every day in the hands of the have-nots all in the name of “poverty.”
The deceased was a business
man, the accused could have asked for
employment there. Instead he armed himself with a panga and brutally
terminated the precious
life of the deceased.
[30]
The accused sold the three cellphones and clothes for R300.00, this
means the deceased died for mere R300.00.
[31]
The guilty plea is generally considered to be a sign of remorse. Yet,
at times an accused person pleads guilty
because there is a strong
case against him. In
S
v Matyityi
[13]
the court stated that:
“
In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused must take the court fully into
his or her
confidence. Until and unless that happens the genuineness of the
contrition alleged to exist cannot be determined. After
all, before a
court can find that an accused person is genuinely remorseful, it
needs to have a proper appreciation of inter alia:
what motivated the
accused to commit the deed; what has since provoked his change of
heart; and whether he or she does indeed have
a true appreciation of
the consequences of those actions
.”
[33]
Indeed the accused spent about ten months in custody awaiting trial.
This in itself cannot be taken as a mitigating factor.
The court in
S
v Radebe And Another
[14]
stated that:
“
A
mechanical formula to determine the extent to which the proposed
sentence should be reduced, by reason of the period of detention
prior to conviction, is unhelpful.
”
[34]
It is trite that the best interests of the child are of paramount
importance in every matter concerning the child.
[15]
This court must take that into consideration when sentencing the
accused who is the father of a minor child. Nonetheless, this
child
as argued by the defence counsel has left the area where the accused
was staying to Burgersfort with the mother.
[34]
The mother of the child is then the primary care giver who takes care
of the needs of the child. Even before the
accused was arrested, he
was surviving on illegal means which no one can regard that as the
recognised means of support and maintenance.
As it was found by
Cameron J in
MS
v S (Centre for Child Law as Amicus Curiae)
[16]
that the enquiry on the impact of the custodial sentence is not
required unless the court finds that the rights of the children
will
be jeopardised if imprisonment is imposed on the secondary caregiver.
[35]
After considering all the circumstances in this case, it is my
considered view that there exist no substantial
and compelling
circumstances to deviate from the prescribed minimum sentence.
[36]
The State argued that the court should not order the sentences to run
concurrently. I was referred to the case
of
S
v Mashava
[17]
in support of the argument. Unfortunately, the State it appears, did
not read the whole judgment as the court made a contrary decision.
In
that case of
S
v Mashava
[18]
the court held that:
“
The
provision is clear. Any determinate sentence of incarceration imposed
in addition to life imprisonment is subsumed by the latter.
This is
logical and practical. A person only has one life and a sentence of
life imprisonment is the ultimate penal provision.
Section 39(2) (a)
(ii) provides for more than one life sentence imposed on a person
also to run concurrently. The effect of s 39(2)
(a) (i) is that the
order by the court below that the sentences are not ordered to run
concurrently, is liable to be set aside.
Consequently, the directive
by the court below that the sentences imposed on the appellant are
not to run concurrently stands in
clear violation of the aforegoing
statutory provisions. There is really no need to order such sentences
to run concurrently, they
do so by operation of law, and stating it
in an order might well be superfluous. In the present case the
substituted order that
appears in the next paragraph contains such an
order for the sake of clarity.”
CONCLUSION
[37]
Having considered all the relevant circumstances of this case, I
cannot find any reason not to impose the prescribed minimum
sentence
in accordance with the Minimum Sentence Act
[38]
In
S
v Holder
[19]
the court emphasised that the approach that imprisonment is only
justified in certain cases cannot be accepted and is a limitation
which does not exist in the meting out of punishment. Any serious
offence, irrespective of the nature thereof, can lead to imprisonment
and imprisonment is sometimes the only appropriate sentence which
ought to be imposed. In the application of the principle that
imprisonment ought to be avoided, the punitive element of punishment
must, in serious offences, of whatever nature, come to the
fore and
be properly considered, if punishment is to have any meaning in the
criminal law.
The following is what I
consider to be a sentence that is appropriate:
ORDER
1.
For
the purposes of sentence both counts are taken as one.
2.
The
accused is sentenced to LIFE IMPRISONMENT.
3.
In
terms Section 103 of the Fire Arms Control Act
[20]
you are declared unfit to possess a fire arm.
________________________________________
M.P.CHIDI, AJ
ACTING JUDGE OF THE
ABOVE HIGH COURT
APPEARANCES:
Counsel
for the Accused: Advocate
N.L.Mathaba
Instructed
by:
The Polokwane Justice Centre
Counsel
for the State: Advocate C. Chauke
Instructed
by:
The Director of Public Prosecutions
Date
of Hearing:
14 November 2016
Date
of Judgment:
16
November 2016
[1]
1969 (2) SA 537
(A) at 540.
[2]
CR Snyman
“
Criminal
Law
”
6ed LexisNexis (2014) at 19.
[3]
2000(1) SACR 45(C)
49j.
[4]
2001 (2) SA 1222
(SCA) at 1235 para 24.
[5]
2001 (2) SA 1222
(SCA).
[6]
1994 (1) SACR 579
(A).
[7]
2014 (1) SACR 541
(SCA).
[8]
Act 60 of 2000, as
amended.
[9]
[1995] ZACC 3
;
1995 (3) SA 391
(CC), para 326.
[10]
1998 (1) SACR 417
(W) at 420C.
[11]
2011 (1) SACR 40
(SCA) at 48 para 14.
[12]
1993 (2) SACR 495
(A) at 497A-C.
[13]
Ibid at 47 para
13.
[14]
2013 (2) SACR 165
(SCA) at 169 para 13.
[15]
Section 28 (2) of
the Constitution of the Republic of South Africa Act 108 of 1996.
[16]
2011 (2) SACR 88
(CC) pars 62-64.
[17]
Ibid.
[18]
Ibid at 543 para
7-8.
[19]
1979 (2) SA 70
(A)
at 74-78.
[20]
Act 60 of 2000, as
amended.