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[2016] ZAGPPHC 980
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S v Dhlamini (CC84/16) [2016] ZAGPPHC 980 (23 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION FUNCTIONING AS
MPUMALANGA DIVISION, (ERMELO)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES:NO
(3)
REVISED:
YES
23
November 2016
CASE
NO: CC84/16
In
the matter between:
THE
STATE
and
DHLAMINI,
THABISO THEMBINKOSI MBULI
Accused
JUDGMENT
ON SENTENCE
MUDAU
J:
[1]
The accused was arraigned for trial before this court on an
indictment that consists of a total of three counts, as follows:
one
count
of murder (count one), one count of robbery with aggravating
circumstances (count two), as well as entering and or staying
in
South Africa illegally in contravention of section 49 (3) and other
relevant provisions of the Immigration Act 13 of 2002 (count
three).
He has since been convicted only on count one (murder) and
count two (robbery with aggravating circumstances). Sentence
must now of necessity be imposed.
[2]
In determining an appropriate sentence, the personal circumstances of
the accused, the nature of the offence and the interests
of the
community have to be considered. The element of mercy is not
left out of equation. Sentencing is also directed
at addressing
the traditional purposes of punishment. These are deterrence,
prevention, retribution and rehabilitation of
the offender.
[3]
The accused’s sentence is subject to the relevant provisions of
the Criminal Law Amendment Act, 105 of 1997 (“the
CLAA”)
which prescribes a variety of mandatory minimum sentences to be
imposed by the courts in respect of a wide range of
serious and
violent crimes. In this matter the provisions of Section 51(1)
and (2) read with Section 51(3) of the CLLA are
applicable. The
accused was warned of this at the commencement of the trial and I
have no doubt that his legal representative
conducted the accused’s
defence with this in mind and would have been prepared accordingly.
The consequences hereof
are that the accused faces a minimum
sentence of life imprisonment in respect of count one and 15 years
imprisonment in respect
of count two, unless I find there are
substantial and compelling circumstances justifying a departure from
the prescribed minimum
sentences.
[4]
The minimum sentence of life imprisonment in this case is applicable
because the death of the victim (a) was caused by the accused
in
committing or after having committed robbery with aggravating
circumstances as defined in section 1 of the Criminal Procedure
Act,
1977 (Act 51 of 1977) and (b) the offence was committed by a group of
persons or syndicate acting in the execution or furtherance
of a
common purpose or conspiracy.
[5]
In mitigation the accused testified that he was 23 years of age, born
on [....] 1994 and was 22 years old when the crimes were
committed.
The indictment reflects his age as 21 by the time he was
charged. A brief calculation if the birthdate is
correct
however, puts him a few months short of his 21st birthday at the
time, and a little over 22 years of age by the time he
was convicted
on 21 November 2016. The difficulty in this regard is that the
State maintains the accused is an undocumented
foreigner.
[6]
The accused further testified he passed matric, was not married but a
father to a minor child, aged six, who remains in the
care and
custody of the biological mother and grandmother. At the time
of his arrest, he was a labourer in the building industry
where he
was paid R500-00 to R600-00 per project. The salary he earned
varied and was dependant on the size of the project.
He had
been in custody for approximately one year and four months since his
arrest. He has no record of previous convictions.
The accused
expressed remorse for his conduct. He apologised for telling
lies during his trial regarding his involvement
in the crimes.
However, when it was put to him by the State, that he was not
genuinely remorseful but said so as a result of his
conviction, the
accused had no response.
[7]
The defence submitted that a combination of all this factors
constitute substantial and compelling circumstances which justifies
a
maximum sentence of 20 years imprisonment, in particular the fact
that the accused was “lured” to commit the offences.
The
State disagreed and called for the maximum prescribed sentences. The
State argued the accused could have, if he
was genuinely remorseful,
pleaded guilty as he was implicated by finger prints and cell phone
evidence which caused a lengthy trial
and a withdrawal of two of his
previous legal representatives.
[8]
The facts regarding the case are simple. The deceased, a
Chinese national was the owner of a clothing store. He
lived on
the premises attached to the store. Two sisters (the accused’s
sisters), Zanele and Phumzile worked for the
deceased,
albeit
in a different store. A section 204 witness, who had befriended
the sisters and the deceased, worked in an office nearby.
A
plan was hatched to rob the deceased of his money days or weeks
before the incident. The accused, who was in Swaziland,
was
roped in as they needed a male hand. The accused carried out
the murder in the cause of the robbery. In the process
a little
over R800-00 in cash, two cell phones and a bag with clothing were
stolen.
[9]
The accused’s sisters and the section 204 witness were known to
the deceased and the former were therefore at risk of
being exposed.
It would therefore have been necessary, from the perspective of
the perpetrators, to murder him. The
deceased died a
brutal, painful and undignified death whilst naked gagged and tied up
by a belt, electric cable, clothes and bedding
materials. Brake fluid
had been mixed with his wine to drug him. The life was squeezed
out of him whilst he lay on the floor
writhing in pain, defenceless
and bleeding through his nose until he succumbed. This was
murder in its most barbaric form,
preceded by assaults and with acid
poured over his naked body. The post mortem report indicates
that his left eye was swollen
and bluish. The body had multiple
abrasions, cuts and contusion. The murder of the deceased was
completely unnecessary,
as he was immobile and not a danger to them
in that state. They could have stolen whatever they could find
and fled the scene.
[10]
In this case there is very little to mitigate the seriousness of the
offences other than the relative youthfulness of the accused
and that
he had been in custody for one year and four months and a first
offender. The robbery was carefully planned and
the accused
went to the house of the deceased armed a knife which he did not
hesitate to use. The motive behind the torture
was in order for
the deceased to disclose where his safe was. The premises were
ransacked but no safe could be found. Armed
robbery and ensuing
death is gloomily an extremely disturbing feature of our lives in
this country. Shop owners are particularly
vulnerable to this
pandemic in crime as they are targeted for what is seen to be quick
and easy money. The deceased foreigner
had a right to life like
all South African citizens, as enshrined in our Constitution, which
required protection for as long as
he was within our shores similar
to the accused, a Swazi, whose real identity remains suspect.
[11]
The accused, in my view, did not demonstrate any immaturity, nor was
it evident that he was subjected to peer or undue pressure
by one or
the others involved in the crime. By his own version he was
“lured”. But, he had enough time
to ponder and
reflect on this matter. Not only did he suggest the brake fluid
with alcohol with which to drug the deceased
a day before, but he
played a pivotal role in the murder. On the contrary, the
manner in which he gained entry to the deceased’s
house, the
brutal nature of the murder, as well as the fact that he maintained
his innocence right up to the end, showed a complete
lack of remorse,
and are all indicative of a calculated bloody-mindedness, belying his
relative youthfulness (see
Director
of Public Prosecutions, Kwazulu-Natal v Ngcobo and others
[1]
).
In
Ngcobo
and others
[2]
,
the accused ranged in age of between 20 and below 22 years at the
time the crimes were committed, on appeal to the Supreme Court
of
Appeal their sentences were increased to life terms of imprisonment
on charges of murder and robbery.
[12]
In
S
v Malgas
[3]
it is set out how a court is to approach the minimum sentence regime,
and in particular, how the enquiry into “substantial
and
compelling circumstances” is to be conducted. The
following passage is of particular relevance:
“
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as the efficacy
of the
policy implicit in the amending legislation, and like considerations
were equally obviously not intended to qualify as substantial
and
compelling circumstances.”
[4]
[13]
Offences of this nature in this country are often committed by people
in the accused’s age category. As Ponnan
JA stated in
S
v Matyityi
[5]
regarding the role that an accused’s age plays when imposing an
appropriate sentence:
“…
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.”
In
the instant case I find no such evidence by the accused who by his
own version was a father of a six year old child.
[14]
It was further held in
S
v Matyityi
[6]
that genuine remorse and regret are two wholly different concepts: —
“
There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is 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. Whether the offender
is sincerely
remorseful, and not simply feeling sorry for himself or herself at
having been caught, is a factual question. It
is to the
surrounding actions of the accused, rather than what he says in
court, that one should rather look. 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 or her change of heart;
and whether he or she does indeed
have a true appreciation of the
consequences of those actions.”
I
find that the accused expressed no genuine remorse as demonstrated by
his overall conduct in this matter but undoubtedly deeply
regrets
that he was caught and eventually convicted and now faces the
prospects of a life sentence. He could not explain
the change
of heart on his part in this regard and his motivation for the
commission of the offences other than that he was lured.
[15]
But as Nugent JA
stated
in
S
v Vilakazi
[7]
that
:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once
it becomes clear that the crime is deserving of a substantial period
of imprisonment the questions whether the accused
is married or
single, whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of ‘flimsy’
grounds that Malgas said should be avoided.
But they are
nonetheless relevant in another respect. A material
consideration is whether the accused can be expected
to offend
again”.
This
is such a case. The accused is in my view a danger to society.
The
accused’s personal circumstances reveal nothing out of the
ordinary and recede into insignificance against the gravity
of the
offences.
I
accordingly find that the accused’s personal circumstances as
placed on record do not constitute substantial and compelling
circumstances that justify the imposition of lesser sentences than
those prescribed in terms of the CLLA.
[16]
In
the result the accused is sentenced as follows:
16.1 On
count one (murder): life imprisonment;
16.2 On
count two (robbery with aggravating circumstances): 15 years’
imprisonment.
In terms of
S 39
of the
Correctional
Services Act, 111 of 1998
the period of imprisonment on count two are
to run concurrently with the term of life imprisonment imposed on
Count one.
TP MUDAU
JUDGE
OF THE HIGH COURT
Date
of Hearing:
22
November 2016
Judgment
Delivered:
23
November 2016
APPEARANCES
On
Behalf of The State:
Adv D Pudikabekwa
Instructed
By:
Director of Public Prosecutions
Nelspruit
On
Behalf of the Appellant: Adv N.R Rasivhaga
(Previously
Adv Malanguti and before him, Adv Erasmus)
Instructed
By:
Legal Aid South Africa ,Nelspruit
[1]
[2009] 4 All SA 295
(SCA) at paragraph 18.
[2]
Supra.
[3]
2001 (1) SACR 469 (SCA).
[4]
At paragraph [9].
[5]
2011 (1) SACR 40
(SCA) at 48A-B.
[6]
S
upra
at
47A-D.
[7]
2009 (1) SACR 552
(SCA) at paragraph [58].