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[2016] ZAGPPHC 1026
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Maleka v S (A107/2016) [2016] ZAGPPHC 1026 (12 December 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:A107/2016
12/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In the matter between:
CLAYTON
MALEKA APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
The appellant is before us on appeal only in respect of the sentence
of life imprisonment imposed on him for murder and housebreaking
with
the intention to rob and robbery with aggravating circumstances. The
two counts were taken together for purposes of sentencing
by the
trial Judge (Webster J). The appeal is with the leave of the Deputy
Judge President who presided in the application for
leave to appeal
as the trial judge was not available.
[2]
According to the ·indictment the appellant was 17 years old
when he was arrested and charged together with his co-accused.
He was
legally represented during the trial.
[3]
As this is an appeal against sentence only the factual findings of
the trial Court must be accepted.
[4]
It is clear from the record that the application for leave to appeal
centred on two issues, i.e. the age of the appellant and
whether
there were substantive and compelling circumstances to deviate from
the prescribed minimum sentences for certain offences
as specified in
the Criminal Law Amendment Act 105 of 1997 (as amended) (the Act).
[5]
But first a synopsis of the facts leading to the appellant's
conviction. The appellant and his co-accused were found guilty
of the
murder of Mr Albert De Jongh, a 66 year old person who lived on a
smallholding in the Wonderboom district. They were found
guilty of
hacking him to death with an axe when they attacked him at the gate
to his premises. They then removed various items
from the deceased's
premises, loaded them into the deceased's motor vehicle and caused
them to be driven away. The indictment states
that the offences took
place on 24 October 2011 but it was amended at the commencement of
trial to read 24 October 2010. The date
of the offence, particularly
the year, is significant in relation to the age of the accused to
which I will revert presently.
[6]
The murder would ordinarily fall squarely within the ambit of section
51(1) read with Part 1 of Schedule 2 of the Act as; it
was committed
in conjunction with a robbery with aggravating circumstances. The
prescribed minimum sentence for this offence is
therefore life
imprisonment unless substantial and compelling circumstances were
present justifying a departure therefrom.
[7]
The investigating officer in the case, adjutant-officer Joubert,
testified in the trial about the determination of the age of
the
appellant. It had appeared to him that the appellant was a minor and,
since he was aware that the Child Justice Act 75 of 2008
(the CJA)
had just come into operation the appellant was immediatelly taken to
court. At the court he was told by the prosecutor
to take appellant
for an age determination. He testified that the appellant was
determined to be 17 years old. The prosecutor then
informed him that
the appellant must have a parent or guardian with him during the
taking of the warning statement and so forth
("met die "warning"
en met al die goeters").
[8]
The appellant had informed Joubert that his father was in Messina and
his mother in Zimbabwe. (The appellant came to South Africa
from
Zimbabwe in search of work). However, he had a sister and brother in
Wallmansthal. Joubert traced his siblings and they accompanied
the
appellant to the Magistrate's court apparently at a court set up in
accordance with the CJA and they were .also present when
his warning
statement was taken from him. Joubert said a probation officer had
also interviewed the appellant before his first
appearance in court.
[9]
Under cross-examination Joubert said the appellant's brother was also
present when he was taken for a pointing out. He was also
kept apart
in a separate cell at the police station.
[10]
A psycho-social report prepared by a Ms Rirhandzu Ngobeni stated the
appellant's date of birth on the front page as "1993.06.25"
but, inexplicably, on the following page his date of birth is stated
to be "1994/07/25". In terms of the former date
the
appellant was 17 years old at the time of committing the offence and
under the latter date about 16 years old. In any event
the probation
officer consistently referred to the appellant as a child in the
report.
[11]
A medical report by a Dr Seller which was prepared to determine if
the appellant had any injuries prior to him being taken
for the
pointing out also reflects his age as being 17 although it is not
stated how this age was determined by the doctor.
[12]
Finally, the trial court itself appears to have accepted when
convicting the appellant that he was 17 years old when it commenced
handing down judgment.
[13]
I have set out the above facts in some detail to show that the
appellant was treated from when he was arrested as being 17
years
old.
[14]
The CJA defines a child as being a person under the age of 18.
[15]
In
Centre for Child Law v Minister of Justice and Constitutional
Development and Others 2009(6) SA 632 (CC)
the Constitutional
Court declared the minimum sentence provisions of the Act
inconsistent with the Constitution insofar as they
applied to child
offenders. As I said, the offences
in casu
took place on 24
October 201O which was after the declaration of inconsistency by the
Constitutional Court. The imposition of a
life sentence on the
appellant in terms of the minimum sentence provisions of the Act
therefore constituted a misdirection by the
trial court. It bears
mentioning that the Act was subsequently amended by Act 42 of 2013 by
substituting sub section (6) of
s51 which now reads as follows:
'(6) This section does
not apply in respect of an accused person who was under the age of 18
years
at the time of the commission of an offence contemplated
in subsection (1) or (2).'
[16]
However, that is not to say that a sentence of life imprisonment may
never be imposed on a youthful offender. It depends on
a number of
factors including the level of maturity of the youth. In S
v
Matyityi 2011(1) SACR 40 (SCA)
at 47e-48a the learned Judge of
appeal said:
"It is trite that a
teenager is prima facie to be regarded as immature and that the
youthfulness of an offender will invariably
be a mitigating factor,
unless it appears that the viciousness of his or her deeds rules out
immaturity. Although the exact extent
of the mitigation will depend
on all of the circumstances of the case, in general a court will not
punish an immature young person
as severely as it would an adult. It
is well established that, the younger the offender, the clearer the
evidence needs to be about
his or her background, education, level of
intelligence and mental capacity, in order to enable a court to
determine the level
of maturity and therefore moral blameworthiness.
The question, in the final analysis, is whether the offender's
immaturity, lack
of experience, indiscretion and susceptibility to
being influenced by others reduce his blameworthiness. Thus, whilst
someone under
the age of 18 years is to be regarded as naturally
immature, the same does not hold true for an adult."
[17]
The principle that a child offender should only be deprived of his or
her liberty as a matter of last resort and then only
for the shortest
possible time is now well established in our law.
(S v B 2006(1)
SACR 311 (SCA), Brandt v S
[2005] 2 All SA 1
(SCA)
and
Centre
for Child Law supra).
Where imprisonment is unavoidable not only
the duration, but also the form of imprisonment should be tempered.
[18]
In
casu
the court a
quo
described the attack on the
deceased by the appellant and his co-accused as brutal and savage and
that he was hacked to death. The
murder was premeditated in that the
appellant even sharpened the axe earlier in preparation for the
robbery. The deceased sustained
seven wounds from the axe used by the
appellant to attack him and the fatal blow was administered on the
back of his neck when
he was lying face down on the ground. He
had two further chop wounds on the back of his head.
[19]
There is no doubt that the attack on the 66 year old deceased was
brutal as found by the learned Judge and ordinarily merited
a life
sentence as found by the Judge.
[20]
A psychosocial report in respect of the appellant was prepared by Ms
Ngobeni at the request of the court for sentencing purposes.
The
appellant comes from an impoverished background in Zimbabwe where he
had lived with his parents and seven siblings. He is the
fifth-born.
His mother and five siblings are still in Zimbabwe while the other
two and his father are in South Africa. Both
his parents are
unemployed but his father previously worked as a truck driver in
Musina in Limpopo where he is still resident.
The two siblings in
South Africa are employed.
[21]
The appellant is not married and has no children. He has maintained
regular contact with his family with whom he has a good
relationship.
His family describes him as a very introverted, respectful, humble,
calm and well mannered person. He had dropped
out of school in
grade 7. He said he dropped out because of financial constraints as
his parents could not afford to pay his school
fees. He then fled to
South Africa where he has been doing odd-jobs such as gardening. His
family said tie was mentally stable
and in good health.
[22]
The probation officer is of the opinion that the appellant knew
exactly what he was doing when he attacked the deceased due
to the
number and severity of the wounds on the deceased. Yet the appellant
disavowed robbing and intentionally killing the deceased.
He
maintained that he and his co accused were hired by the deceased
to do some work for the day and then refused to pay them.
There was
an altercation and a scuffle between his co accused and the
deceased and he (appellant) had merely attempted to
hit a "slush"
(it seems to me the probation officer meant a "slasher'') out of
the deceased's hands with a machete.
He confirmed hitting the slasher
but said he had accidentally hit the deceased on the hand. The
deceased fell down and he and his
co-accused went away.
[23]
It is apparent from this version given by the appellant to the
probation officer that he continues to deny having murdered
the
deceased with his co accused. However, the accepted facts
indicate that they had planned the attack on the deceased. Even
during the trial the appellant did not take the court into his
confidence but steadfastly maintained his innocence in the face
of
compelling evidence against him. Can it then be said that there is a
chance of rehabilitation of someone who seems to have no
insight into
the gravity of the offences he has committed? In the case of an adult
the answer would probably be no. What about
a youthful offender? In S
v N 2008(2) SACR 135 (SCA)
Cameron JA (as he then was) in a
majority judgment said that a lengthy sentence would treat the
youthful offender too much like
the adult he was not and foreclose
the possibility of rehabilitation. It is accepted, said the learned
Judge that children are
treated differently than adults in
recognition of,
inter alia,
"immature judgment" and
"youthful vulnerability to error" which could influence
their actions. In these circumstances,
in casu,
the trial
Judge's remarks that he could find nothing to suggest that the
appellant is prepared to reform indicates that the principle
applicable to sentencing child offenders were not sufficiently, or at
all, taken into consideration. This court is thus at liberty
to
consider sentence afresh.
[24]
During the appeal hearing counsel for the appellant conceded that a
long term of imprisonment was called for due to the nature
and
gravity and the brutality
of
the murder. It was also conceded
that although the appellant was the younger of the two accused he
appeared to be the more dominant
one and could be called the
"ringleader"
[25]
Th13 post-mortem report reveals that the deceased had,
inter alia,
seven chop wounds, mostly on his head and neck. It appears that
there was not merely an attempt to overcome resistance by the
deceased
so that he could be robbed of his belongings, but to kill
him outright.
[26]
The attack and murder of the deceased had a life-changing
effect
on the deceased's close friend of more than 23 years, Mrs
Verheule. His friends who lived near to where the deceased lived
alone
on a farm were no doubt traumatised as well as his family in
the Netherlands. According to the probation officer, Mr B.M Collins,
(who prepared a pre-sentence report in respect of the second
accused), the impact of the deceased's death was so severe that Mrs
Verheule suffered a stroke which has affected her speech.
[27]
I have already set out the appellant's personal circumstances
earlier, and his lack of remorse. He is a first offender. It
is also
noted that the appellant spent more than three years awaiting trial.
[28]
The trial court took the two counts together for the purpose of
sentence. The
Criminal Procedure Act 51 of 1977
does not expressly
prohibit charges being taken together for purpose of sentence nor
does such an act in itself constitute a misdirection.
(S
v Keulder
1994(1)
SACR
91(A) at 101i- 102b
and S
v Immelman [1978
(3)] 726 [ADJ at 728E-729D).
[29]
However, bearing in mind that the Act provides for minimum sentences
for specified offences and the court
a quo
approached
sentencing as if the Act was applicable it is in my view undesirable
in cases where minimum sentences were applicable
for the various
offences that they be taken together for sentence. The reason is that
for each count where a minimum sentence is
applicable the question
whether substantial and compelling circumstances exist to justify a
departure from it should be considered
separately. This matter before
us is an example of the undesirability of such an approach in that
there was a need to consider
whether substantial and compelling
circumstances existed in respect of each of the two offences. Another
reason for the disapproval
of joint sentences is the problem that can
arise on appeal or review when some of the convictions are set aside.
Also, by considering
each count separately there is a greater
likelihood of a more correct sentence being imposed.
[30]
As I said,
in casu
the Act does not apply in respect of the
appellant and the sentence imposed is not a misdirection
per se
nor is it an issue that has been raised on appeal.
[31]
Taking all factors into account it seems to me that the life sentence
should be set aside and a lengthy determinate sentence
be imposed
instead. The life sentence is disproportionate, not so much to the
crimes but in relation to a child offender.
[32]
I propose the following order:
1.
The appeal is upheld.
2.
The sentence of life imprisonment imposed by the
court
a quo
is set
aside.
3.
A
sentence of 20 (twenty) years' imprisonment is imposed, ante
dated to 7 April, 2014, both counts taken together as one for
the
purpose of sentence.
____________________
RANCHOD J
JUDGE
OF THE HIGH COURT
I
AGREE
___________________
TOLMAY
J
JUDGE OF THE HIGH COURT
I
AGREE
___________________
TLHAPI
J
JUDGE OF THE HIGH COURT
Appearances:
Counsel
on behalf of Appellant
: Att. H.L Alberts
Instructed
by
: Pretoria Justice Centre
Counsel
on behalf of Respondent
: Adv J Cronje
Instructed
by
: Director of Public Prosecutions, Pretoria
Date
heard
: 9 September 2016
Date
delivered
: 12 December 2016