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[2015] ZAGPPHC 636
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S v Nxumalo (CC94/14) [2015] ZAGPPHC 636 (6 August 2015)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, EASTERN CIRCUIT, ERMELO)
CASE
NUMBER: CC 94/14
(1)
REPORTABLE:
YES
/
NO
(2)
OF INTEREST TO
OTHER JUDGES:
YES
/
NO
(3)
REVISED.
06/08/2015
……………………
..
………………………...
DATE
SIGNATURE
In the
matter between:
THE
STATE
versus
BHEKIBUTHO
VINCENT NXUMALO
SENTENCE
LAMPRECHT,
AJ
(06 August 2015)
Introduction
[1]
Mr Nxumalo, after having convicted you of the various crimes
mentioned in my judgment on the merits, I now have to determine
an
appropriate punishment. In formulating a suitable sentence I must
bear in mind the main objectives of punishment in South African
criminal law,
[1]
namely retribution to those wronged, prevention of crime and the
deterrence of criminals. In cases such as the current, where the
crimes are very serious in nature, the penal objective of reformation
or rehabilitation of the offender can be regarded as only
a secondary
objective of punishment. In formulating an appropriate sentence, I am
required to have a dispassionate and proportional
regard for the
nature of the offence, the interests of society and your personal
circumstances as an offender.
[2]
On the one hand, I am required to demonstrate the outrage of society
at the commission of heinous crimes by imposing an appropriate
and,
if necessary, a severe sentence. On the other hand, a civil outlook
on the concept of
Ubuntu
requires
of me to try and show an understanding of and compassion for the
weaknesses of human beings and the reasons why they commit
serious
crimes, by avoiding an overly harsh sentence if at all possible. In
the end, the sentence imposed must be a balanced one,
which is
sensible and motivated by sound reasons and which will therefore meet
with the approval of the majority of law-abiding
citizens of the
state.
[3]
If I do not, the administration of justice will fall into disrepute
and society will lose trust in the judicial system, with the
possibility of engendering vigilante action and society taking the
law into its own hands, although “righteous anger”
should
never “becloud [the] judgment [of the sentencing court]”.
[4]
There is already an outcry for the re-introduction of the death
penalty in some circumstances, and there have been recent incidents
where society had taken the law into its own hands where suspected
offenders were severely beaten up, sometimes even put to death
in the
most horrendous fashion, without even having appeared before a court
of law and having had a fair trial. This is something
that I cannot
lose sight of and I must endeavour to restore the trust of society in
the criminal justice system.
The
crimes
[2]
Murder, rape, robbery with aggravating circumstances and
housebreaking with intention to rape and rob are some of the most
serious crimes in South African criminal law, with only perhaps
treason, genocide, the crime against humanity and war crimes have
the
propensity to be regarded as more serious in some circumstances. All
of these crimes have in the pre-Constitutional era been
regarded as
capital crimes, which held the possibility of the death penalty being
imposed in case of conviction. Fortunately, the
death penalty is no
longer a viable sentencing option, but that ‘ultimate’
penalty has now been replaced with life
imprisonment as the heaviest
sentencing option open to a competent court.
[3]
The murder (count 1)
[5]
and the two rape charges (counts 2 and 4)
[6]
that you have been convicted of, in law carries a minimum sentence of
life imprisonment that the court is obliged to impose, except
if it
is able to find that substantial and compelling reasons exist for the
imposition of a lesser sentence.
[7]
In the case of the robbery with aggravating circumstances (count 3)
the minimum prescribed sentence is 15 years imprisonment, save
where
substantial and compelling circumstances justify a lesser
sentence.
[8]
However, following the guidelines provided by the Supreme Court of
Appeal in
S
v Malgas
,
[9]
all factors relevant to sentencing before the minimum sentencing
legislation saw the light of day still need to be taken into account
in determining and appropriate sentence, whilst bearing in mind that
legislature has decreed a pertinent benchmark for punishment
in those
cases for good reason and that the specified sentences are not to be
departed from lightly and for flimsy reasons. In
other words,
punishment must in each case be individualised to fit the specific
crime in the particular circumstances of each case,
and a generalised
approach should be avoided.
[4]
In considering the seriousness of the crimes that you have been
convicted of, I must bear in mind that both the incidents you
committed heinous crimes that induces shock in the mind of every
right-minded person. To break into ones house, where one is supposed
to feel safe and protected, with the intention to rape and rob; and,
then to rape a small [….] year old girl; and, to brutally
rape
and rob an adult lady with such violence that she is actually
brutally murdered cannot be regarded otherwise than in a serious
light. The young child victim, who was only […] years old at
the time, has been emotionally disturbed by the incident to
the
extent that she has lost all trust in the male part of society –
she even views her own father with suspicion and does
not want to
enter into normal relationships with boyfriends, even now, seven
years after the incident in 2008 while she is already
[….]
years old. The murder, rape and robbery of the victim in counts 1 to
3, can only be described as a brutal and cruel
torture of a lady. She
was throttled until her hyoid bone fractured; causing a difficulty to
breathe and her head was injured by
brunt force trauma administered
by you, which could even mean that you banged her head against the
wall while throttling her, while
she was no match for your strength.
She was seriously injured and died an excruciatingly cruel death a
few days later. All your
victims were helpless against your thuggery.
As the crimes were committed at dead of night with unsuspecting
victims and neighbours
who did not know you, while you masked
yourself, made that the crimes were difficult to solve. For the 2008
incident, you were
only arrested and charged a number of years after
the incident. What apparently happened, according to the information
provided
by the prosecutor, is that, for some eight months after the
2013 incident, you remained untraceable. It was only since the father
of the deceased kept on pestering the police to solve the matter that
the police, through technical tracing methods, managed to
trace the
cellular phone of the deceased in your possession. Even then, for
reasons that I do not comprehend, you were not immediately
arrested.
A sample of your DNA was collected, typed and circulated on the SAPS
data base, after which you were linked to both incidents
of rape,
arrested and charged. In your case the wheels of justice surely
turned slowly for society and the victims and, had it
not been for
advanced detective measures, these incidents might have gone
unpunished for ever and become part of the statistics
of unsolved
crimes in this country, which society so protests against. For the
first time during sentencing did you disclose that
you are HIV
positive. It is not known whether you were HIV positive before the
young child who survives to this day was raped and,
if so whether she
contracted the HI virus or whether the dreaded ARV medication saved
her from contracting this dreaded disease
which is a killer of
generations. I do not know what the reasons are for you to have
committed such heinous deeds, and you have
not disclosed any motive
or reason that may have a mitigating effect on the seriousness of the
crimes.
Interests
of society
[5]
Crimes such as these clearly engender outrage in society. Many people
have left this country in fear of crimes such as these
and it would
appear as if serious violent crimes against women and children have
increased tenfold or more during the past two
decades of democracy.
Nobody feels safe even in their own homes. Almost daily, one reads in
the newspapers and sees on TV and hears
over the radio of the most
heinous crimes that have been committed against helpless members of
society and everybody lives in fear.
Tourists become scared to visit
South Africa.
[6]
The Constitution of the Republic of South Africa and many major
international instruments to which South Africa is a signatory
state
regard the rights of women and children very highly. As regards to
rape, the late Chief Justice of this country, Mahomed
CJ, in
S
v Chapman
[10]
remarked as follows:
“
The Courts
are under a duty to send a clear message to the accused, to other
potential rapists and to the community: We are determined
to protect
the equality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.”
[7]
In
S
v Zitha and Others
,
[11]
it was similarly remarked that the courts should send out a message
to everyone in society, including the townships, that crimes
of
violence and, especially sexual violence against women and children
will not be tolerated by the courts and that they will not
shy away
from their duty to protect society even if it means that severe
sentences like life imprisonment be imposed however painful
it might
be for the courts to do so.
[8]
In fact, it would appear as if quite a large portion of the male
community regards women and children as mere objects that can
be
sexually and violently abused at their whim and that they have no
rights whatsoever. Again, you have supplied no motive or reason
as to
why you committed these crimes that may have the effect that I can be
made to understand the reasons why you have committed
them to
determine whether you are entitled to any compassion and mercy.
Personal
circumstances (interests) of the accused
[9]
I have carefully scrutinised your personal circumstances as were
sketched by your Counsel in his address on mitigation. You
were born
on […..], which makes you […] years old. You are [….]
positive which means that, without the right
treatment and without
following the strict prescripts of a medical doctor, you are prone to
contract fully blown AIDS in which
case you will not have a long life
expectancy. Whether this is a mitigating feature, an aggravating
feature or, at best, a neutral
feature for purposes of determining a
suitable punishment, I will leave undecided. Suffice it to say that
the surviving victim
will live in fear for a number of years to come
for having contracted the HI virus. Your father passed away in 2009
and your mother
is very sick. You have four kids and you are the last
of four kids. These personal circumstances can, at best, be described
as
fairly average when compared to those of other criminals convicted
of similarly heinous crimes.
[10]
Your personal circumstances evidence an aggravating feature, to wit,
that you have been sentenced for housebreaking with intent
to steal
and theft to a period of imprisonment for 5 years in 2001. You have
not been long after you have served your sentence
before, at two
occasions a few years apart you again broke into the homes of
unsuspecting and helpless victims. This time you did
not only steal
as you did with the property of Ms [....], but you also raped two
people, robbed and severely injured and killed
one of them. This
leaves one with serious suspicions that you might have committed
other similar crimes in the time that you remained
undetected and at
large, but that they have not yet been solved and might never be.
Sentence
and final order
[11]
Tried as I could, I could not find any substantial and compelling
circumstances that would justify any preferent treatment
in your case
to receive a lesser sentence than that prescribed by the minimum
sentencing law. To the contrary, even had it not
been for that law, I
would have considered at least one term of life imprisonment as an
appropriate sentence in your case. You
have proven that you are a
menace to society and that society has to be protected against you.
The deterrent effect of punishment
will also be underscored by such a
sentence and it will send out the required message to society, the
law-abiding part and the
criminal part thereof, namely that rapists,
robbers and murderers of this kind have no place in society and need
to be removed
for protection and deterrence. I take into account that
the purpose of life imprisonment is to remove a criminal from society
for
the rest of his natural life; or, at least for as long as it
requires to make the particular criminal harmless before he returns
to society, and that the possibility of rehabilitation is next to
impossible. By being a repeat offender for housebreaking with
intent
to steal and theft you have already indicated that you are not easily
rehabilitated by punishment and, as indicated in my
judgment on the
merits and above, you have now escalated to the commission of even
more heinous crimes. Taking all of this
into account, I do not
think that any other form of punishment is suitable than your removal
for the rest of your natural life.
[12]
You are hereby sentenced as follows:
Count 1
(murder)
:
Imprisonment for life in terms of
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
;
Count 2 (rape)
:
Imprisonment for life in terms of
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
;
Count 3 (robbery
with aggravating circumstances)
:
15 years imprisonment imposed in terms of
section 51(2)(a)(i)
of the
Criminal Law Amendment Act 105 of 1997
;
Count 4 (rape)
:
Imprisonment for life in terms of
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
;
Count 5
(housebreaking with intent to rape and rob)
:
8 years imprisonment;
Count 6
(housebreaking with intent to rape and rob)
:
8 years imprisonment;
Count 7 (theft)
:
2 years imprisonment.
Naturally all sentences will run
concurrently as a sentence of longer than life imprisonment is not
possible in law.
____________________________
A
A LAMPRECHT
ACTING
JUDGE GAUTENG DIVISION OF THE HIGH COURT
Representation
for the state
:
Counsel
Adv JJ Jacobs
Representation
for the accused
Counsel
Adv PM Mnisi
Instructed
by
Legal Aid
South Africa
[1]
S v Rabie
1975
(4) SA 855
(A) at 862A-B;
S v Mbonambi
and Another
n1991 (1) SACR 123 (A) at
126i-j.
[2]
S v Zinn
1969
(2) SA 537
(A);
S v Roux
1975 (3) SA 190
(A) at 197;
S v
Dlamini
n1992 (1) SA 18 (A).
[3]
S v Khumalo
1973
(3) SA 697
(A) at 698: “Punishment must fit the criminal as
well as the crime, be fair to society and be blended with a measure
of
mercy according to the circumstances.”
[4]
In
R v Karg
1961
(1) SA 236
(AD) Streicher JA remarked: “It is not wrong that
the natural indignation of interested persons and of the community
at
large should receive some recognition in the sentences that
courts impose, and it is not irrelevant to bear in mind that if
sentences
for serious crimes are too lenient, the administration of
justice will fall into disrepute and injured persons may incline to
take the law into their own hands. Naturally, righteous anger should
not becloud judgment.”
[5]
“
Murder, when– ... (c) the death of
the victim was caused by the accused in committing or attempting to
commit or after having
committed or attempted to commit ... (i)
Rape; or (ii) robbery with aggravating circumstances as defined in
section 1 of the
Criminal Procedure Act, 1977 (Act No 51 of 1977)”
is a crime listed in Part I of Schedule 2 of the Criminal Law
Amendment
Act, 1997 (Act No 105 of 1997) as amended (the CLAA).
[6]
“
Rape– ... (b) where the victim–
(i) is a girl under the age of 16 years; ...(c) involving the
infliction of grievous
bodily harm” are crimes listed in Part
I of Schedule 2 of the CLAA.
[7]
Section 51 (1) of the CLAA reads:
“Notwithstanding any other law, but subject to subsections (3)
and (6), a regional court
or a High Court shall sentence a person it
has convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for
life.” The relevant part of subsection (3)(a)
reads: “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 subsection, it shall enter those circumstances
on the record of the proceedings and must thereupon impose
such
lesser sentence: ...”
[8]
See section 51(2) read with Part II of Schedule 2
of the CLAA.
[9]
2001 (1) SACR 469
(SCA), especially at paras
[20]-[25] of the judgment.
[10]
1997 (2) SACR (3) SCA at 5d.
[11]
1999 (2) SACR (W).