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[2016] ZAKZPHC 36
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S v Ngcobo (CC72/14) [2016] ZAKZPHC 36; 2016 (2) SACR 436 (KZP) (7 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: CC72/14
DATE:
07 APRIL 2016
REPORTABLE
THE
STATE
V
THEMBELIHLE
NGCOBO
JUDGMENT
DELIVERED
ON: 07 APRIL 2016
POYO
DLWATI J
[1]
The phrase ‘sentence is a lonely and onerous task in the
criminal justice system’ became a reality again in this
matter.
It is difficult because one must reach a balance of the triad
referred to in
S
v Zinn
,
[1]
namely the crime, the offender and the interests of society in order
to arrive at a just sentence. The sentence must be fair to
the
offender and to the interests of society. None of these factors must
be over emphasised more than the other. Having said that,
Ms Ngcobo,
you have been convicted of a very serious and prevalent offence,
which is murder. Because of its seriousness the
Legislature has
prescribed a minimum sentence of fifteen years imprisonment to be
imposed unless substantial and compelling circumstances
exist that
justify the imposition of a less severe sentence.
[2]
[2]
The substantial and compelling circumstances are those, as described
by Marais JA in
S
v Malgas
,
[3]
that reduce the moral guilt of the offender, which when taken
together cumulatively their impact justify the imposition of a less
severe sentence than the one prescribed. Even though the
Legislature has prescribed the minimum sentences, the factors that
were traditionally considered during the sentencing stage prior to
the enactment of the Act are still applicable and I have referred
to
them above. Furthermore sentence must also have a blend of mercy
where applicable.
[3]
As alluded to above, murder is not only prevalent in our country but
is very serious. It is the end of a person’s life,
which is a
right guaranteed in our constitution. You did not only deprive the
deceased’s family of a son and a brother but
you deprived his
children of a father, including your now two year old son. You also
deprived Ms Khanyile of a husband. As describe
in exhibit ‘F’,
the report by the probation officer, the deceased was a loving and
caring person who was a bread winner
in his family and supported his
children. They now suffer from financial difficulties because of your
deeds. What you did is unforgettable
and one day you will have to
answer to your own child as to what happened to his father. The
interests of society strongly come
to the fore that it will not
tolerate such offences and you must therefore be punished
accordingly. Our courts can only meet the
interests of society by
imposing appropriate sentences. You must be prevented from committing
similar offences such as this and
a strong message must be sent to
would be offenders that our courts will not tolerate conduct
s
,
such as yours. In the process you must also be rehabilitated.
[4]
However your personal circumstances reflect a rather sad and
disturbing background. Even though you were born from the marriage
of
your parents, according to the report of the Correctional Services
Social Worker, Ms Geldenhuys, handed into evidence by consent
of the
parties as exhibit ‘J’, your mother passed away when you
were eight years old and your father passed away when
you were nine
years old. After having suffered physical and emotional abuse at the
hands of various relatives, you further witnessed
domestic violence
perpetuated on your grandmother by her partner. At the age of 13
years you had to take care of your siblings
and you fell pregnant
with your first child at a very early stage as she is now 16 years
old. Out of all that you were fortunate
in that you passed matric and
obtained a secretarial course. You were also fortunate in that you
were able to secure employment
with the South African Police Services
(SAPS) in 2006 and this is where you met the deceased and had a
relationship with him since
2012.
[5]
This relationship unfortunately did not work out the way you would
have wanted it to. However, prior to this relationship with
the
deceased, according to the report of the State Principal Clinical
Psychologist, A. Kramers-Olen, admitted into evidence by
consent as
exhibit ‘E’, during 2006 you had a relationship with a
colleague who was physically and emotionally abusive
and reflected
on
a tendency to be controlling. This led you to consult with a
psychiatrist, Dr Moodley, during 2008. During this time you
presented
a suicidal ideation and depressed mood and were treated for
depression. You were hospitalised and started on anti-depressant
medication. It is evident on the various reports that you were not
always compliant with your medication, apparently, due to the
side
effects caused by the medication. At least there were about five
admissions for depression between 2009 and 2013.
[6]
Kramers-Olen found that the abuse, in particular by your uncle,
appears to have resulted in a pervasive distrust of male figures,
which has manifested at times along the developmental trajectory. She
found that when you became involved with the deceased you
believed
you could rely on him and when this did not happen your levels of
frustration and anger arose and they appear to have
been activated by
criticism and the rejection of you and your baby by the deceased. She
found that there was evidence of hostility
and anger, particularly in
the context of interpersonal relationships. She also found that your
childhood and adolescent years
appear to have been characterized by
loss, deprivation and abuse which may have predisposed you to the
development of the psychological
and psychiatric difficulties in
adulthood.
[7]
She further found that your personality style is characterised by
depression, anxiety and physical complaints as well as strong
needs
for nurturance/dependence in interpersonal relationships. This,
according to Kramers-Olen causes underlying feelings of anger
and
hostility that are easily activated by criticism. Furthermore, she
found that the early abuse you suffered in your life has
resulted in
pervasive distrust of male figures. The rejection by the deceased on
the day of the incident activated a severe emotional
response.
[8]
According to Clive Willows, another Clinical psychologist, whose
report was entered into evidence as exhibit ‘D’,
on the
date of the incident, in your state of depression and anxiety it was
difficult to formulate any intent or appreciation of
consequence that
would be worse than what you currently perceived. According to
him, a feature of depression is persistent,
negative, hopeless
thinking which parallels a general emotional state of melancholy.
Pessimistic thoughts create a belief that
nothing will change and any
positive outlook is futile. Sufferers of depression presume the worst
and develop a non-caring attitude
towards the future which is
perceived as providing inevitable sadness and disappointment. Such
persons develop a set of beliefs
that inform them that any
intervention or decision on their behalf is pointless as the outcome
will inevitably be negative. With
such entrenched cognitions,
consequences of actions are not rationally measured and judgment
becomes impaired.
[9]
He holds a similar view with Kramers-Olen, that you seek nurturance
and protection and fear abandonment and desertion. The relationship
with the deceased provided the antithesis of your own deep emotional
needs. When this reality was accepted by you, you experienced
severe
depression. According to Willows, your experiences evoked deep seated
emotional anguish and distress and would be a catalyst
for severe
psychological pathology, which is in itself serious but when provided
with a lethal instrument could have and did have
traumatic
consequences. With such a personality, Willows says you were never
supposed to be entrusted with a firearm. Although
you had been
deprived of your firearm after the domestic violence interdict, you
were however given back the firearm, I don’t
know under what
circumstances. This omission on the part of the SAPS, unfortunately,
is part of the consequences we have to deal
with.
[10]
Willows also agreed with Kramers – Olen that your reaction to
the deceased’s rejection and aggression was one of
desperation
and your judgment and behavioural control were impaired. Your
depressive state would not enable you to consider your
alternatives
or consequences in any sort of measured or reasonable manner and your
ability to control your behaviour was compromised.
[11]
Your counsel, Mr Barnard, has argued vigorously that when you
committed this act, you acted with diminished criminal responsibility
and this much was conceded by Ms Kander who appeared on behalf of the
state. For this reason, he submitted that your conduct is
therefore
morally less reprehensible. The state has also accepted your
explanation as contained in your statement made in terms
of section
112(2) of the Criminal Procedure Act 51 of 1977 (‘the CPA’)
that immediately prior to the incident you were
an emotional mess. We
now know from the reports of the two clinical psychologists that your
reaction was triggered by the rejection
by the deceased. Your power
of restraint and self-control, compared to a normal person, was
substantially reduced.
[4]
In light of all the evidence by the experts, read with your section
112(2) statement which was accepted by the state and
the concession
by the state that you acted with diminished responsibility, I am
satisfied that your criminal responsibility at
the time you committed
this offence was diminished. This therefore reduces your culpability
and in due course I will make a comparison
of the various cases on
sentence where a person acted with a diminished responsibility and
they were deemed morally less responsible.
[5]
[12]
Your other personal circumstances were that you are a first offender
and have no previous convictions. You are young, being
32 years old,
and that makes you a good candidate for rehabilitation. You are
remorseful, hence your plea of guilty. You have two
children one aged
16 and the other is almost 2 years old. This is the other concern and
major difficulty in dealing with this matter
because this court must
take into account the best interests of the minor children in
sentencing you. It seems, from the reports
submitted that the older
child is being taken care of by a relative already and, in my view, I
do not have to concern myself much
about this child. The second child
is the one I am most concerned about. This is so because he is of
tender age and requires special
attention. You are his primary
caregiver and you are the only parent he knows and will know nothing
of
as
his father, the deceased, as he is no more.
This fact was also accepted by the state in your plea explanation.
[13]
It is therefore of paramount importance to consider and take into
account the interests of this child when sentencing you,
as the High
Court is the upper guardian of all children. Section 28(1)(b) of the
Constitution provides that every child has the
right to family care
or parental care, or to appropriate alternative care when removed
from the family environment. Section 28(2)
provides that a child’s
best interests are of paramount importance in every matter concerning
the child. As Sachs J
pointed out in
S
v M (Centre for Child Law as amicus curiae)
[6]
‘
the
question is not whether S 28 creates enforceable legal rules, which
it clearly does, but what reasonable limits can be imposed
on their
application’.
[7]
He
further explained that this section indicates that just as law
enforcement must always be gender-sensitive, so it must always
be
child sensitive; that statutes must be interpreted and the common law
developed in a manner which favours protecting and advancing
the
interests of children; and that courts must function in a manner
which at all times shows due respect for children’s
rights.
[8]
[14]
It was submitted on your behalf that one of your cousins, Ncediwe
Msomi will take care of your child should a term of direct
imprisonment be imposed on you. Furthermore in terms of the
report submitted, by Ms Geldenhuys (exhibit ‘J’),
Westville Female Correctional Centre, where you might be incarcerated
provides for facilities where children are kept with their
mothers
and are taken care of. In your situation you have chosen that in the
event you are incarcerated your cousin will keep and
look after your
child. However, I do not believe that being separated from your child
for a long period would be in the best interests
of the child
especially due to his age. You are his mother and need to nurture and
ensure his development and survival. You need
to guide him in life
and protect him so that he does not find himself one day in a similar
situation as yours.
[15]
According to Sachs J at para 20 in
S
v M
supra
best efforts must be made to avoid, where possible, any breakdown of
family life or parental care that may threaten to put
children at
increased risk. In situations where rupture of the family becomes
inevitable, the state is obliged to minimise the
consequent negative
effect on children as far as it can. I am of the view that it is best
that the child is not kept with you in
prison as this would be
tantamount to the child being imprisoned with you which is against
Article 30 of the African Charter on
the Rights and Welfare of the
Child
[9]
which was ratified by
this country and we are therefore obliged to comply with its
obligations. In my view, whilst there will be
an impact on the child
as a result of the sentence I am going to impose, that impact will be
minimal and the child will be taken
care of whilst you are away. I am
of the view that the sentence I am going to impose will take into
account the best interests
of the child but not to the detriment of
the other factors that need to be considered.
[16]
As submitted by the defence and conceded by the state, I am satisfied
that all of your personal circumstances taken together
cumulatively
are weighty and cogent to qualify as substantial and compelling
circumstances justifying the imposition of a less
severe sentence
than the one prescribed. Whilst I have mentioned that the sentence I
must impose must act as a deterrent to you
and other offenders, no
evidence has been adduced that you have a propensity for violence or
you are a danger to society. You are
a first offender and given the
unusual circumstances of the case you are unlikely again to commit
such an offence.
[10]
As held
in
Director
of Public Prosecutions, Transvaal v Venter
[2008] ZASCA 76
;
2009 (1) SACR 165
SCA at para 61
‘
deterrence
of a person who commits murder acting with diminished responsibility
is not an important factor when it comes to punishment’.
[17]
The question therefore is what is that appropriate sentence? Hence, I
now come to the comparison of sentences imposed previously
in similar
cases dealt with by various courts, although I must mention
beforehand that in most of these cases only one is similar
to this
one in terms of the presence of a history of mental illness. This
case is unique in various regards, namely, that unlike
in other cases
here we are dealing with a woman who perpetuated the killing, has a
history of mental illness, acted with diminished
criminal
responsibility and is a primary care giver to a minor child. As Navsa
JA held in
S
v Ndlovu
,
[11]
‘
we
must guard against imposing uniform sentences that do not distinguish
between the facts of cases and the personal circumstances
of
offenders’.
[18]
For instance, in
S
v Mnisi
supra
where the appellant had killed his wife’s lover whom he found
embracing her in a car after having undertaken to terminate
the
relationship, the court accepted that he acted with diminished
responsibility and sentenced him to 5 years imprisonment. In
S
v Mngoma
,
[12]
the accused had killed his live in partner as he suspected her of
being unfaithful to him. The court accepted that the accused
had been
under serious provocation, hurt and anger and was sentenced to 5
years imprisonment initially but on appeal this sentence
was changed
to 10 years imprisonment. In
S
v Mathe
[13]
the accused had shot his partner who had terminated their
relationship shortly before the incident. Even though the court found
that no diminished criminal responsibility had been established, it
still sentenced the accused to 10 years imprisonment. In
S
v Romer
[14]
where the accused was found to have acted with diminished criminal
responsibility and was convicted of one count of murder and
two
counts of attempted murder, he was sentenced to 10 years imprisonment
wholly suspended for 5 years. In addition he was sentenced
to 5
years’ correctional supervision in terms of s 276(1)(h) of the
CPA.
[19]
It is my view therefore that justice will be served if a sentence of
5 years imprisonment in terms of section 276(1)(i) of
the CPA.
Accordingly, you are sentenced to 5 years imprisonment in terms of
section 276(1)(i) of the CPA.
[1]
1969 (2) SA 537
(A).
[2]
Section 51(2) of the Criminal Law Amendment Act 105 of 1997 (‘the
Act’).
[3]
2001 (1) SA 469
(A) at para 24.
[4]
See
S
v Mnisi
2009 (2) SACR 227
(SCA) at para 33.
[5]
See
S
v Mnisi
supra at para 6.
[6]
2007 (2) SACR 539 (CC).
[7]
S
v M
supra at para 14.
[8]
S
v M
supra at para 15.
[9]
States
should provide special treatment to expectant mothers and to mothers
of infants and young children who have been accused
or found guilty
of breaking the law.
[10]
See,
S
v Mnisi
supra at para 8.
[11]
2007 (1) SACR 535
(SCA) at para 13.
[12]
2010 (1) SACR 427(SCA).
[13]
2014 (2) SACR 298 (KZP).
[14]
2011 (2) SACR 153
(SCA).