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[2015] ZAECBHC 9
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S v Ximiya (CC91/14) [2015] ZAECBHC 9 (19 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO: CC 91/14
In
the matter between:
THE
STATE
vs
LUYANDA
XIMIYA
Accused
SENTENCE
MAKAULA
J:
[1]
The deceased died as a result of a single gunshot wound. The
post mortem report reflects
as the cause of death “
a gunshot
wound neck and spinal cord – unnatural cause”.
At
the time of his death the deceased was 71 years old married to the
complainant in count 2,
Idelette
for a period of 48 years.
They were blessed with four children who are all grown-ups and
several grandchildren four of whom
were present with the deceased and
Mrs Troskie
at the time the deceased died in the hands of the
accused and his accomplices, two of whom are unknown and the other
one is reported
to have been killed during another robbery.
[2]
Death of a human being through killing has devastating and dire
consequences for the family of
the deceased person. It results
in financial, emotional, traumatic and psychological problems on
those close and around the
deceased. Its adverse effects can
never be adequately described and the pain it causes cannot be
measure in anyway.
The pain and helplessness that one feels
cannot be verbalized. The same is felt by the deceased family
in this matter.
[3]
Some of us try to live, a healthy lifestyle and behave appropriately
because we want to preserve
our lives and to leave as many years as
we possibly can. That we do in order to benefit ourselves and
those around us.
We want to live as long as it is humanly
possible so that we may see our children, grandchildren and great
grandchildren grow.
We wish so because we want to instil good
values and morals on them.
[4]
I may unashamedly say that the deceased had succeeded to look after
himself but for the actions
of the accused. No amount of words
can describe the loss the accused caused the family of the deceased
and the community
in general. As alluded, to the effects of
murder to those close to the victim are the same across the nation
and the colour
line. Cutting somebody’s life through
violence more especial violence which is perpetrated by criminality
needs to
be condemned and meted out with appropriate punishment.
[5]
What is now colloquially termed “
farm killings”
is
rife in our country. Farmers who contribute quite substantially
to our economy in the recent years have been targeted by
criminals.
Such conduct has been condemned and still needs to be condemned.
Farm killings are sporadic and need to
be knipped in the bud.
In my career I have dealt with several cases involving people like
the accused who go around robbing
and killing farmers especially
those who are as old or more as the deceased in this matter.
Communities and the government
are really affected by these senseless
killings of innocent and law abiding members of our community.
[6]
I cringe to think that the deceased in this matter lost his life for
absolutely no reason.
The only valuable items that were stolen
from his farm were left thrown away i.e. the car and fire-arms.
Nothing of value
apart from the rings was taken away and recovered.
[7]
It is a miracle that the life of
Mrs Troskie
and the
grandchildren was spared. She should thank
God
, if she
is a
Christian
like I am, that she was not raped. I,
however, have to take into account that she was severely injured.
I alluded to
her injuries in my judgment and shall do so even now.
“
[11]
The J88 which was completed by
Dr TJA
Louw
reflects the following injuries:
11.1
Deep laceration of ±6cm over forehead and bridge of nose;
11.2
Severe swelling of face with bruises over face and scalp;
11.3
Active bleeding from laceration fracture of the left mandible, nasal
and frontal bones present.
The
conclusion was “
severe blunt force was used to cause facial
injuries.”
[12]
Mrs Troskie
was further treated by
Dr Hein Slabbert
who
is a Maxillofacial and oral surgeon. She was admitted at
Greenacres hospital on 13 December 2013 with the following injuries:
12.1
Laceration forehead, factured left zygomatic arch, fracture of outer
wall of frontal sinus, nasal
bone fracture with displacement of nasal
bridge, ethmoid factures, blow-out fracture of the right orbital
floor, fracture of the
left mandibular ramus, coronoid process and
condyle.
[13]
On 14 December 2013 she received the following treatment:
13.1
Open reduction and internal fixation frontal bone, nasal bridge,
nasal bones and closure of soft
tissue lacerations.
[14]
On 10 January 2014 she received the following treatment:
14.1
Closed reduction of mandibular fractures using Erich arch bars and
intermaxillary fixation.”
[8]
The accused played a pivotal role before and after the commission of
these offences as stated
in my judgment on conviction. I shall
adumbrate in this judgment the role he played. The evidence
clearly establishes
that he switched off the lights when they got to
the farm, grabbed and assaulted
Mrs Troskie
causing her the
injuries as described above. He took and removed the items
which have been recovered. All these things
should be viewed in
the backdrop that from the time they left town to come to the
deceased’s farm, they armed themselves
with fire-arms which
they used in the killing of the deceased. I rejected the
evidence of the accused that he only came to
the deceased’s
farm to steal sheep. This was a planned and well orchestrated
robbery.
[9]
In considering sentence, I have to have regard to the personal
circumstances of the accused.
He was 25 years at the time of
the commission of the offences. He is not married though he has
2 children aged 3 and 7 years
respectively. He was maintaining
them though they stayed with their mothers at the time of his
arrest. He was working
earning a sum of
R3 500.00
per month in a road construction company.
Mr Solani
, for
the accused further submitted that the accused is a candidate or a
person who is capable of rehabilitation. Indicators
for such
are that the accused did not run away, he made a clean breast by
confessing and pointing out the crime scenes to the police,
so
submitted
Mr Solani
. The parents of the accused are
deceased and he lived with his grandparents and is not married.
[10]
The question of sentence is pre-emptily the discretion of the court
which has to be exercised judiciously.
In other words, after
having properly considered the triad i.e. the interest of the
community, the crime, as well as those of the
accused are taken into
account. The balancing of these interests is always a difficult
one and not easy to strike.
Hence I was perturbed or taken
aback by the address of
Mr Robinson
that he merely prepared
his address in respect of life imprisonment only and not any other
form of punishment. It is trite
that officers of court should,
in advancing their cases be of assistance to the court in the
interest of justice and not adopt
a dogmatic view.
[11]
The accused did not show any remorse as suggested by
Mr Solani
.
The accused changed his defence in order to suite the circumstances
of this case. He has not shown, at most, any signs
of
contrition that was expected of him or any reasonable person in his
position especially that he alleges to have been forced
in the
commission of the offences. Much was expected of him under
those circumstances. The age of the accused cannot
count in his
favour for anything in this matter. He was a grown-up who
clearly could discern between right and wrong, what
is barbaric and
not. He therefore cannot benefit from his age if one has
regards to how the deceased was lured outside three
times to be
killed on the third occasion.
[12]
I, therefore, find no substantial and compelling circumstances in
respect of counts 1, 2 and 3.
Consequently,
I hand down the following sentences;
COUNT
1
:
Murder
The
accused is sentenced to life imprisonment.
COUNT
2
:
Robbery
with aggravating circumstances
The
accused is sentenced to undergo fifteen (15) years imprisonment.
COUNT
3
:
Unlawful
possession of fire-arms
The
accused is sentenced to undergo fifteen (15) years imprisonment.
COUNT
4
:
Unlawful
possession of fire-arms
The
accused is sentenced to undergo three (3) years imprisonment.
COUNT
5
:
Unlawful
possession of ammunition
The
accused is sentenced to undergo two (2) years imprisonment.
M
MAKAULA
JUDGE
OF THE HIGH COURT
Counsel
for the State:
Adv
Robinson
Counsel
for the Accused:
Mr
Solani
Heard
on: 16, 17 & 18 February 2015
Delivered
on: 19 February 2015