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[2014] ZAGPPHC 169
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S v Montsho (CC31/13) [2014] ZAGPPHC 169; 2014 (2) SACR 481 (GP) (28 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
HELD INTHE DELMAS
CIRCUIT
CASE
NO: CC31/13
DATE:
28 MARCH 2014
In the matter
between:
THE STATE
Vs
THABISO PRINCE
MONTSHO
JUDGMENT
THULARE AJ
[1] The accused, a
27 year old male, is charged with one count of murder and one count
of kidnapping. He pleaded guilty to both
charges. The State did not
accept the plea that the murder was not planned or premeditated.
[2] It is common
cause that the accused was in an intimate relationship with the
maternal aunt of the deceased and that she terminated
that
relationship contemporaneous with the developments leading up to the
charges against the accused. The accused did not accept
that the
relationship has irretrievably broken down. He still harboured hopes
that that relationship could be restored. The accused
and the family
of the deceased both lived in Wattville, in the magisterial district
of Benoni. The deceased and his mother lived
together with her
younger sister, the accused’s erstwhile girlfriend, at the same
address.
[3] It is common
cause that on the afternoon of 11 August 2012, at around 17H00 the
accused came and removed the deceased, Tshegofatso
Moraswi, at that
time a 3 year old boy-child who was to turn four years old the
following month, from the street in front of their
home where the
deceased was playing with his twin brother and a friend, pushing old
tyres along the street; that he carried the
child for some distance,
then walked with away and took the child to Wattville Dam, also known
as Dalpark Dam, where he stabbed
the child several times with a
knife, with the intention to kill the child, and that he killed the
child and then fled the scene
leaving the deceased there at the dam.
[4] The evidence
shows that Albert Basi, a 16 year old youth was at the corner of Padi
and Poto street, not far from where the three
young infants were
playing the tyre game. Whilst there, he saw the accused at that
corner. He noted that the accused was keeping
observation. He knew
the young children from sight but did not know their names, and also
knew that the accused had an intimate
relationship with a relative of
the deceased. He saw the children playing their tyre game. It came as
no surprise to him when the
accused called the young boy to him,
neither was it strange to him when the accused first carried the
child and later walked away
with the child. In his mind, they were on
their way to the shops for the accused to spoil the child with some
gifts.
He reported what he
saw only later that evening when he heard that the child was missing.
The accused had walked with the child
to the direction of Wattville
Dam. The evidence suggests that it is amongst others from the reports
of Basi that the community
of Wattville caught the accused, and
assaulted him, before he was handed over to the police.
[5] Maputle Jeffrey
Tlaka is a Captain in the SAPS, stationed in Etwatwa, who was asked
by the Actonville SAPS to oversee a pointing
out, which was done by
the accused. When explained his right to legal representation, the
accused had indicated that he does not
need legal representation for
purposes of the pointing out, although he may require legal
representation in future. When explained
that what he says will be
noted down and that photos will also be taken, which may be used
later as evidence against him during
a subsequent trial, he indicated
that he understood and when asked whether he still wished to make the
pointing-out, he replied
in the affirmative. He indicated that he was
not assaulted, threatened or influenced by any person to make the
pointing-out. When
Captain Tlaka observed the bruises on his back,
the accused told him that the bruises were as a result of the assault
by the community
members when they arrested him, before the police
arrived.
[6] The accused,
freely and voluntarily took Captain Tlaka, the photographer and other
back-up police officers to the pointing-out
scene. The accused
directed Captain Tlaka from Benoni SAPS station through a number of
streets in Wattville, leading them out of
the squatter settlement
towards the dam. At the dam the accused took them into the Dalpark
area where he then asked them to stop
. The accused walked them for
about 300m and pointed at a wet and muddy area and said that is where
he killed and left the small
child, which he carried away from Poto
street in Wattville, whereafter he threw away the knife with which
the child was stabbed,
and fled the scene. Photos which were taken,
were handed in as exhibits.
Captain Tlaka was
not cross-examined at all.
[7] The accused
version is that the maternal aunt of the deceased was his girlfriend,
and that her parents did not approve of their
relationship. Arising
out of a dispute which arose between her and her parents, she left
her parental home and came to stay with
him. He and his parents
accepted her for she was pregnant with his child. The first attempt
of reconciliation between her and her
parents, in his room which he
shared with her failed, but later she reconciled with her parents and
moved back home. From then
on, his attempts to meet with her were
thwarted by her relatives and he was prevented from seeing her. Even
an attempt through
her friend to get to know her well-being, or see
her, failed. For a few months he went about hurting, attempting to
get to see
and reconcile with her and or her parents, which attempts
were always met with contemptuous disregard. Attempts by his parents
to settle the issues between him and her family also failed.
[8] On 11 August
2012 he attended a traditional ceremony as he is a traditional
healer. Whilst there, he shared his frustrations
and hurt with other
traditional healers and took a decision to join them dance as part of
his emotional healing. He did not have
his traditional regalia with
him and decided to go home to fetch it, which he did.
[9] When he left
home, he had with him a sports bag, containing his regalia as a
traditional healer, which included his kangas,
blanket, and beads to
which a knife is attached. Carrying his sports bag, he decided to go
first via his girlfriend’s home
in yet another attempt to
reconcile with her and her family. He knocked and received no answer.
[10] As he left the
yard, he noticed a group of children playing in the street in front
of that yard, amongst others was the deceased
whom he knew as one of
the twin boy children of Jabulile, the girlfriend’s elder
sister. He picked up the child and does
not know why he did so. He
walked away with the child not knowing where he was going. He did not
talk to the child, neither did
the child talk to him throughout their
30 minutes walk from Poto street, through Silver Town and Tamboville,
to the dam, in Wattville.
[11] He just walked
aimlessly carrying the child and when he came back to his senses he
was at the dam. He heard voices in his head,
but could not hear what
the voices were saying. However, it is not the voices that told him
to kill the child. He does not know
if he put the child down or
whether the child dropped from his hold. He undressed the child,
removing all the clothing and leaving
the child naked. He opened his
sports bag, searched for and took out the beads, removed the knife
therefrom and started stabbing
the child. He does not know how many
times but he accepts it was 12 times. When he left the child, the
child was still crying and
it was dark. He walked away. He threw the
child’s clothing amongst the reeds at the dam, some distance
away from the child.
He also threw away the blood-stained knife away.
[12] He ran home. In
his room he changed the blood-soaked clothing which he had on and
placed them in a plastic bag. He moved around
the structures on the
yard to the backyard where he hid the plastic bag containing his
blood-soaked clothing.
[13] The parents of
the deceased came to his house, looking for the child. He denied any
knowledge of the whereabouts of the child.
He was confronted with
information that he was the person last seen walking away with the
child. He denied this. He was afraid
of the parents and the
community. He was taken away to the child’s home. The Police
were called to the house. They asked
him about the whereabouts of the
child and he denied any knowledge and denied walking away with the
child. He later admitted to
the Police that he took the child away
but did not tell them that the child was injured. He did not tell the
Police everything
that happened.
[14] Upon searching
his parental home, his blood-stained clothing was discovered where he
had hid them inside the plastic bag behind
the house. The child was
searched for but was never found that Saturday. It was only the
following day, the Sunday, on further
searches by the community and
the Police, that the body of the child was discovered at the dam. His
version is that he could not
take the Police or the community to the
child as he did not remember where he had left the child.
[15] He did not plan
what happened. He cannot explain why he did what he did. He never had
any problems with the biological parents
of the child. He went to
school with them. He asked for forgiveness for what he did.
[16] After the
testimony of the accused the State applied to re-open its case, which
application was not opposed and was granted.
[17] Jacobus
Cornelius Coetzee (Coetzee) is a registered Clinical Psychologist who
runs an independent practice but also renders
his services to
Weskoppies Hospital in clinical psychology and forensic psychological
assessment. He holds a Bachelor’s degree
in Theology and
Psychology, an Honours degree in Psychology and a Master’s
degree in clinical psychology. He is registered
with the Health
Professions Council of South Africa. He is a member of the South
African Medico Legal Society as well as the International
Association
for Forensic Mental Health Services.
[18] He evaluated
the accused at the request of the court whilst the accused was under
observation at Weskoppies Hospital in Pretoria.
[19] In his
psychological interview with the accused, the accused reported to him
the voices that scream at him usually at night,
and throw him with
birds and chickens. The voices tell him to take a cable wire to hang
himself and sometimes cut himself with
a razor or to fight people.
[20] Coetzee
conducted a psychometric test on the accused.
20.1 Under the
personality assessment inventory (PAI), which test provides
information relevant for clinical diagnosis, treatment
planning and
screening for psychypathology and covers constructs most relevant to
a broad-based assessment of mental disorders,
the accused answered
the questions in a way to create a distorted profile. His
interpretation of the marked elevation on the negative
impression
scale is that the accused made a deliberate attempt to create an
overly negative impression of himself. Coetzee holds
the view that
this is indicative of an attempt to malinger psychiatric symptoms.
20.2 Under
structured inventory of malingered symptomatology (SIMS), which test
is a multi-axial, self-administered screening measure
for detection
of malingering in clinical and forensic settings, the accused scored
positive for attempted malingering for all of
the scales on
psychosis, neurologic impairment, amnestic disorders, low
intelligence and affective disorders. Coetzee interprets
this as that
the accused endorsed a high frequency of symptoms that are highly
atypical in patients with genuine psychiatric or
cognitive disorders,
this may indicate an attempt to malinger these symptoms.
20.3 Under the
inventory of legal knowledge (ILK), which is a test designed to
assist the forensic examiner in assessing reponse
styles of
defendants undergoing evaluations of their competency to stand trial
and is a measure of a defendant’s approach
to inquiries about
his legal knowledge, the accused obtained a score of 50, which score
falls in the upper end of the normal range.
Coetzee interprets this
as that the test results support the fact that the accused did not
attempt to feign limitations in his
ability to understand or
participate in the legal process.
[21] Coetzee’s
opinion is that the accused does not currently suffer from any
clinical psychiatric disorders and that at the
time of the incident
he did not suffer from any clinical psychiatric disorder. Coetzee’s
opinion is that the accused shows
antisocial and narcissistic
personality traits. Coetzee is also of the opinion that the accused
is currently malingering some psychiatric
symptoms, specifically
those in the psychotic disorder spectrum.
[22] Coetzee’s
conclusion is that the accused is capable of understanding the court
proceedings and can meaningfully contribute
to his own defence, and
that at the time of the commission of the offence, the accused was
able to distinguish between right and
wrong and was able to act in
accordance with such understanding.
[23] Dr K Naidu, a
State Psychiatrist and Dr PH De Wet, a Psychiatrist appointed by the
Court, are both duly registered psychiatrists
who compiled a joint
report regarding the mental condition of the accused, which was
handed in by agreement between the parties.
[24] Their
examination consisted of clinical interviews with the accused and
observation of his general behaviour in the ward. He
was physically
examined. A summary of court proceedings was made available to them,
a psychosocial report was complied and he was
psychologically
evaluated.
[25] The two
Psychiatrists found no psychiatric diagnosis. The diagnosis they
found was malingering. They both noted his previous
medical and
psychiatric history.
[26] Their opinion
is that the accused is capable of understanding court proceedings and
is able to contribute meaningfully to his
defence.
[27] Their opinion
is also that at the time of the alleged offences, the accused did not
suffer from a mental disorder or mental
defect that affected his
ability to distinguish between the rightful or wrongful nature of his
deeds. A mental disorder or mental
defect did not affect his ability
to act in accordance with the said appreciation of the rightful or
wrongful nature of his deeds.
[28] The only issue
between the State and the accused is whether the murder was planned
or premeditated.
[29] The joint
report of the two Psychiatrists, Dr Naidu and Dr De Wet, was admitted
by the accused. The only criticism that the
court has, of their
report, is that they do not set out their training, competency, skill
and/or experience, to enable the court
itself to conclude that they
are persons qualified to be experts in their field. Moreover, they do
not indicate the nature of the
clinical interviews, other
observations and examinations they carried out as well as the facts
they found, upon which their diagnosis
is based, to enable the court
to draw its own conclusions. In the light of their being qualified as
experts not being in dispute,
for purposes of this judgment, their
titles and their declaration that they are duly registered
psychiatrists will suffice to meet
their qualification as experts to
make a psychiatric diagnosis. In the same breath, I accept their
opinion as the opinion of the
court and find that no psychiatric
diagnosis was made in respect of the accused, and that what was
diagnosed was malingering.
[30] The court finds
that the accused is capable of understanding court proceedings and is
able to contribute meaningfully to his
defence. The court further
finds that at the time of the alleged offences the accused did not
suffer from a mental disorder or
mental defect that affected his
ability to distinguish between the rightful or wrongful nature of his
deeds. A mental disorder
or mental defect did not affect his ability
to act in accordance with the said appreciation of the rightful or
wrongful nature
of his deeds.
[31] Having regard
to the evidence of Coetzee, the court finds that the version of the
accused that he heard voices is beyond reasonable
doubt false. With
specific reference to the psychometric tests conducted on the accused
and with specific reference to the personality
assessment inventory,
the court finds that this is part of the accused’s deliberate
attempt to create an overly negative
impression of himself in an
attempt to malinger psychiatric symptoms. The court further finds
that the accused endorsed a high
frequency of symptoms that are
highly atypical in patients with genuine psychiatric or cognitive
disorders. The court also finds
that the accused falls in the upper
end of the normal scale and that the accused did not attempt to feign
limitations in his ability
to understand or participate in the legal
process.
[32] The court
accepts the opinion of Coetzee, and finds that the accused has
anti-social and narcissistic personality traits. The
court further
finds, in favour of the accused, that the murder was not planned.
[33] Section 51(1)
of the Criminal Law Amendment Act, 1997 ( Act No. 105 of 1997)
provides as follows:
“Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for
life.”
Part I of Schedule 2
referred to provides as follows:
“Murder, when
–
(a) It was planned
or premeditated; …”
[34] The terms
“planned” or “premeditated” are not defined
in the Act. The Cape Provincial Division, through
Bonzalek J writing
for the Full Bench, pronounced itself as follows on this aspect in S
v Raath 2009(2) SACR 46 (C) at paragraph
[16] c-g:
“The concept
of a planned or premeditated murder is not statutorily defined. We
were not referred to, and nor was I able to
find, any authoritative
pronouncement in our case law concerning this concept. By and large
it would seem that the question of
whether a murder was planned or
premeditated has been dealt with by the court on a casuistic basis.
The Concise Oxford English
Dictionary 10 ed, revised, gives the
meaning of premeditate as ‘to think out or plan beforehand’
whilst ‘to plan’
is given as meaning ‘to decide on,
arrange in advance, make preparations for an anticipated event or
time’. Clearly
the concept suggests a deliberate weighing-up of
the proposed criminal conduct as opposed to the commission of the
crime on the
spur of the moment or in unexpected circumstances. There
is, however, a broad continuum between the two poles of a murder
committed
in the heat of the moment and a murder which may have been
conceived and planned over months or even years before its execution.
In my view only an examination of all the circumstances surrounding
any particular murder, including not least the accused’s
state
of mind, will allow one to arrive at a conclusion as to whether a
particular murder is ‘planned or premeditated’.
In such
an evaluation the period of time between the accused forming the
intent to commit the murder and carrying out this intention
is
obviously of cardinal importance but, equally, does not at some
arbitrary point, provide a ready-made answer to the question
of
whether the murder was ‘planned or premeditated’.
[35] Clearly, the
Full Bench approached “planned or premeditated” as a
concept, meaning it as one idea. It appears in
my view, with respect,
that the learned Judges accepted the word “or” between
the two words as meant to introduce a
synonym or explanation of a
preceding word.
[36] In my view, the
two words, “planned” and “premeditated”‘
are two different concepts representing
two different ideas.
“Premeditated” refers to something done deliberately
after rationally considering the timing or
method of so doing,
calculated to increase the likelihood of success, or to evade
detection or apprehension. On the other hand,
“planned”
refers to a scheme, design or method of acting, doing, proceeding or
making, which is developed in advance
as a process, calculated to
optimally achieve a goal. Such process has general features which
include:
1. The
identification of the goal to be achieved.
2. The allocation of
time to be spend.
3. The establishment
of relationships necessary to execute.
4. The formulation
of strategies to achieve the goal.
5. Arrangement or
creation of the means or resources required to achieve the goal and
6 Directing,
implementing and monitoring the process.
In my view, the word
“or” between “planned” and “premeditated”
in Part I of Schedule 2 introduces
the second of the two alternative
concepts. In my view, the use of the word “or” indicates
that the Legislature did
not favour a composite description of the
circumstances, to meet the test.
[37] There is no
evidence to suggest that the accused conceived an intention or plan
to kill the deceased before that fateful afternoon,
or specifically
before he met the deceased in the street. From the accused’s
own version, it is clear that he was angered
by the actions of the
blood relations of his girlfriend, in particular their disapproval of
his relationship with their daughter
and their actions in a quest to
bring that relationship to an end. His anger seems to have been
fuelled by Tshepiso, girlfriend,
ending their relationship on Friday
the 10th August 2012, the day before he killed the deceased, on the
accused’s own version
as related to Coetzee.
[38] The court
accepts the evidence of Coetzee and finds that the accused’s
identity is one of ego-centrism with a self-esteem
derived from
personal gain, power or pleasure and that his goal-setting is based
on personal gratification. He has a lack of concern
for feelings,
needs or suffering of others. Exploitation is his primary means of
relating to others, including coercion and use
of dominance. The
court also accepts that the accused has a personality trait of
grandiosity with feelings of entitlement, either
overt or covert
self-centredness, firmly holding the belief that he is better than
others and is condescending towards others and
is attention seeking
with excessive attempts to attract and be the focus of the attention
of others in admiration seeking.
The court finds that
the version of the accused that his possession of the knife that
afternoon in Poto street, Wattville, was simply
a co-incidence, is
highly improbable. So is his version that the reason for him to be in
that street, where Tshepiso’s parental
home is situated, was an
attempt to reconcile. Both are beyond reasonable doubt false, in my
view.
[39] When the
accused saw the 3 year old boy pushing a tyre playing with his twin
brother and friends, he conceived the idea of
killing the infant as a
sign of his power to satisfy his self-esteem. The killing was an act
calculated to force Tshepiso’s
relatives towards benevolence
and acceptance of his relationship with her, thus seeking their
attention. It was also an act of
revenge to Tshepiso for ending the
relationship, and her family for their disapproval of him as a
suitable partner for her.
[40] The deceased
and his twin brother were playing without any adult supervision from
a relative. The accused stood by the corner,
doing an observation.
The likelihood is that he had hoped to see and meet Tshepiso. He had
sufficient opportunity, as he stood
and observed, and as he noted the
children playing, to ponder. The accused did not take any child and
stab him or her, there and
then in a moment of rage or impulsively in
a spur of a moment. He specifically called the child of Jabulile, the
elder sister of
Tshepiso. When the accused carried the child away, he
had rationally considered the timing and circumstances as suitable
for the
removal of the child to an isolated spot. The 30 minute walk
to an isolated dam outside the township increased the likelihood of
him succeeding to kill the child without any interference, detection
or apprehension. The brutal killing of the child was an act
of power,
an act of dominance in the sense of having the last laugh in the
whole episode, an act of personal gratification, an
act of revenge,
an act of hurting Tshepiso and her family, an act to influence
control and manipulate Tshepiso and her family,
an act of
callousness, an act of hostility in response to the discipline which
Tshepiso’s family tried to enforce. It was
unnecessary. It was
unnecessary to undress the child, with the attendant cold
temperatures of the closing stages of the winter
months in Gauteng,
South Africa, especially the East Rand, at that time of the day, and
month. Not only was it an act of lack of
concern for feelings of the
child and accused’s lack of guilt or conscience about the
harmful effects of his aggressive actions.
It was also an act of
humiliation not only to the child, but also to his family.
[41] The court finds
that the murder was premeditated.
My understanding of
the decision in S v Malgas 2001(2) SA 1222 (SCA), as well as the
decision in S v Khiba 1993(2) SACR 1 (A), in
my view, having regard
to the terminology therein employed, does not convey facile enough to
me that the Supreme Court of Appeal
itself interprets “premeditated”
to be incapable of being understood as a concept on its own. I have
not been referred
to, nor self been able to trace any judgment where
this question was specifically discussed.
[42] The accused is
found guilty of the premeditated murder, as set out in count 1. He is
also found guilty of kidnapping, as set
out in count 2.
DM THULARE
ACTING JUDGE OF THE
HIGH COURT
ON SENTENCE
[42] Section
51(3)(a) of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997
provides that:
“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 that the sentence prescribed in those subsections, it
shall enter those circumstances
on the record of the proceedings and
must thereupon impose such lesser sentence: …”
[43] The approach to
this provision was set out in S v Malgas 2001(2) SA 1222 (SCA) at
1233-1234 paragraph [18] by Marais JA as
follows:
“The absence
of any pertinent guidance from the Legislature by way of definition
or otherwise as to what circumstances should
rank as substantial and
compelling or what should not, does not make the task any easier.
That it has refrained from giving such
guidance as was done in
Minnesota from whence the concept of ‘substantial and
compelling circumstances’ was derived
is significant. It
signals that it has deliberately and advisedly left it to the courts
to decide in the final analysis whether
the circumstances of any
particular case call for a departure from the prescribed sentence. In
doing so, they are required to regard
the prescribed sentences as
being generally appropriate for crimes of the kind specified and
enjoined not to depart from them unless
they are satisfied that there
is weighty justification for doing so. A departure must be justified
by reference to circumstances
which can be seen to be substantial and
compelling as contrasted with circumstances of little significance or
of debatable validity
or which reflect a purely personal preference
unlikely to be shared by many.”
[44] In S v Dodo
2001(3) SA 382 (CC) at paragraph [11] The Constitutional Court,
through Ackermann J, endorsed the interpretation
of the words
‘substantial and compelling circumstances’ in s 51(3),
and the detailed step-by-step procedure to be followed
in applying
the test to the actual sentencing situation. Ackermann J said at 393
B-D:
“The
interpretation, as an overarching guideline, is one that this Court
endorses as a practical method to be employed by
all judicial
officers faced with the application of s 51. It will no doubt be
refined and particularised on a case by case basis,
as the need
arises. It steers an appropriate path, which the Legislature
doubtless intended, respecting the Legislature’s
decision to
ensure that consistently heavier sentences are imposed in relation to
the serious crimes covered by s 51 and at the
same time promoting the
‘spirit, purport and objects of the Bill of Rights’”.
[45] In that
step-by-step procedure, Marais J said at 1235 paragraph [25] from his
letters B-G:
“B. Courts are
required to approach the imposition of sentence conscious that the
Legislature has ordained life imprisonment
(or the particular
prescribed period of imprisonment) as the sentence that should
ordinarily and in the absence of weighty justification
be imposed for
the listed crimes in the specified circumstances.
C. Unless there are,
and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore
required to elicit a
severe, standardised and consistent response from the courts.
D. The specified
sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the
offender, undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying
the legislation and marginal
differences in personal circumstances or degrees of participation
between co-offenders are to be excluded.
E. The Legislature
has, however, deliberately left it to the courts to decide whether
the circumstances of any particular case call
for a departure from
the prescribed sentence. While the emphasis has shifted to the
objective gravity of the type of crime and
the need for effective
sanctions against it, this does not mean that all other
considerations are to be ignored
F. All factors
(other than those set out in D above) traditionally taken into
account in sentencing ( whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G. The ultimate
impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick (‘substantial
and
compelling’) and must be such as cumulatively justify a
departure from the standardised response that the Legislature
has
ordained.”
[46] The totality of
the evidence shows that the accused is swimming against the tide of
the national agenda, which agenda seeks
to confront the frontiers of
violence against women, children, the differently able-bodied as well
as older persons. In my view,
the national agenda seeks to sweep
these frontiers away and to deposit them onto the shoreline amongst
the debris of our history
where the stubborn monument of patriarchal
chauvinism belongs, in the sea of a democratic and constitutional
milieu.
[47] Two days after
the commemoration of National Women’s Day, when the
consciousness of celebrating women was still fresh
in the memories of
all South Africans who care to listen, the accused approached the
home of his former girlfriend armed with a
knife, seeking to revenge
his grief and anger occasioned by being told that the girlfriend has
lost love and affection for him.
[48] Accused had a
history of domestic violence with his girlfriend. He was controlling
and manipulative, according to her. She
left the common home she
shared with the accused after accused had assaulted her again, and
this time whilst she was pregnant.
Knowing that she was pregnant, he
had assaulted her on her womb. She realised that the accused was a
danger to her, and to her
unborn child, and left the common home.
When she arrived at her parental home, she bled from her private
parts and ultimately lost
the unborn child.
[49] Around the
period of the commission of the offence, it is well known that the
nation is already in dialogue, with logistical
arrangements already
being made and speakers arranged, at least now for more than ten
years, in preparation for the 16 days of
activism against women and
child abuse, which starts two months thereafter, from 25 November to
10 December annually. It is around
the time of the national engines
of mobilisation to start roaring to run for the protection of
children, that the accused removed
a child from the care of its
parent with the intention to kill him.
[50] There is no
doubt that the killing of a defenceless child is a serious crime,
which is prevalent in this country, and that
society expects of the
courts to deal decisively with offenders. The accused was undoubtedly
in a position of trust in relation
to the child. It may be so that
the child also had in mind what Basi thought, to wit, that he is
being taken to the shops to be
spoilt with gifts by its uncle. Three
year olds are known for their being talkative and speaking their
minds. This explains why
the wisdom of African ancestors is to remove
children of that age for the bedroom of their parents to their
grandmothers. It is
highly unlikely, in my view, that the boy-child
did not talk to the uncle. The probabilities favoured a conclusion
that the accused
must have said something to the child, which stirred
the interest of the child so much so that it left to play. The
probabilities
favour a conclusion that what the accused said to the
child settled the child and in trust and hope the child left with the
accused
without any resistance.
[51] The child must
have been shocked, and felt betrayed, when the person he had trusted
would protect him, started to stab him.
A then 25 year old man
stabbed a naked defenceless child 12 times. The child had been
removed to an isolated area early evening
where there was no chance
of anyone coming to its rescue. At dusk, alone amongst the reeds,
naked and brutally injured, a young
life was painfully lost.
Aspirations died. Dreams were lost. A chapter ended. The motive was
revenge and jealousy, informed by
antisocial behaviour and a
narcissistic personality. The murder was premeditated.
[52] The accused
pleaded guilty to the charge. He has a previous conviction of
assault. It was not a serious assault such that it
is even possible
that the provisions of section 112(1)(a) of the Criminal Procedure’s
Act 51 of 1977 were applied, having
regard to the sentence imposed.
He is 27 years of age. He worked as a traditional healer and earned
approximately R7000-00 (seven
thousand rands) a month.
[53] Counsel for the
accused argued that the accused showed remorse. I am inclined to
disagree. It is difficult, if not impossible,
to detect any remorse
on the side of the accused, as he appears to always shift the
goal-posts away from a frank, candid and honest
approach.
He initially denied
any knowledge of the whereabouts of the child and only made
admissions when confronted with evidence for which
he could not
provide a satisfactory answer.
When it was clear
that there was evidence by eye-witnesses that he had left with the
child, only then did he admit leaving with
the child, but claimed he
did not know where the child was.
When his blood-
soaked clothing were found and the child was discovered, he made a
pointing out, but malingered mental illness or
mental disorder.
[54] The court also
takes into account that the accused has an antisocial personality
disorder and a narcissistic personality disorder.
The evidence of
Coetzee is that these disorders may be genetically transferred, but
can also be acquired from the systems under
which one grows up or
from the society from which one emerges.
[55] The family
set-up of the accused appears to be such that it allowed him to fail
to conform to culturally normative ethical
behaviour. His parents
allowed him to remove a school girl from her parental home and bring
her home to live with him in his outside
room as husband and wife,
whilst that girl was still at school, without at least any resistance
or at most involving the parents
of the girl child.
Sent by him, his
elders reported a pregnancy of the girl-child to her parents,
contrary to established indigenous practice and custom,
in terms of
which the parents of the boy-child are reported to, by the elders of
the girl-child.
With the greatest of
respect to the accused parents, the evidence suggests that they
simply asked: “How high” when he
said: “Jump”,
instead of them being in authority over him.
The silence of the
accused parents in the struggle of Tsepiso’s parents to have
their daughter back at home and in school,
and to have the accused
reigned in, is too loud to be disregarded, as a contributory factor
in the antisocial personality make-up
of the accused.
It seems to me that
the accused was so used to the absence of parental authority over him
that he harboured a belief that he could
do as he pleased with any
child and/or any parent at any household. This in my view, informed
his hostility and anger to the parents
of Tshepiso when they stood
their ground against his behaviour.
The court is
inclined to find that the accused’s antisocial personality
disorder and narcissistic personality disorder were
nurtured and
developed by the family from which he emerges.
In my view, the
presence of the accused within the environment of his family
constitutes a danger to society, unless and until there
are
programmes for interventions. As things stand, the accused is a
danger to society.
[56] The right to
life is sacred, basic to humanity itself and enjoying Constitutional
protection. Children in this country are
entitled to play in the
streets, especially just in front of their parental home. They have a
legitimate claim to play peacefully
on the streets, to enjoy their
youth, to run around and enjoy the peace and tranquillity of their
homes and neighbourhoods without
the fear, the apprehension and the
insecurity which constantly diminishes the quality of their lives.
[57] The accused
showed no respect for life. He prowled the streets, deceptively
pretended to care for the child by lifting him
up and carrying him
away and then proceeded to kill him callously and brutally with a
knife.
[58] Dealing with
callous and brutal acts after victims were deceived by an accused and
their rights were not respected, the Supreme
Court of Appeal
expressed itself as follows in S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at
345 C-D:
“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
equality, dignity and the freedom of all women, and we shall show no
mercy to those who seek to invade those
rights.
We communicate that
message in this case …”
In this case before
me, Tshepiso and her family in particular, the community of
Wattville, as well as the society in general, have
a right to be
protected from a fearful life, fearing for their lives. This court
must speak, as a protrusion of society, the language
that society
speaks, to wit: “Freedom for all.” Not freedom for some.
[59] In S v Khiba
supra, Eksteen J, said the following after referring to decisions
wherein the death sentences were imposed, at
page 4 paragraph to page
5 paragraph c:
“These
decisions seem to reflect the gravity with which this Court regards
murderous attacks on victims in their own homes
and more particularly
isolated farms. Sentences of death have been confirmed not only when
the victims were old and frail but also
where they were ablebodied
and strong. So, too, even where the intention was dolus eventualis,
and where the appellants have been
comparatively young, and even
first offenders. The reasoning in these cases, as exemplified in the
dictum from Shabalala’s
case quoted above, is compelling and
commends itself to any reasonable mind. The present case is but one
more in this sad category.
The deceased and his wife lived alone on
their farm and had done so for 40 years. This must have been common
knowledge in the area,
and was certainly known to the appellant and
his accessories who lived on neighbouring farms. Their plan of attack
was premeditated
and carefully laid, as was evidenced by their
abortive foray on the Saturday evening. It was carried out with
violent determination
and persistence, and resulted in the death of
the hapless deceased in his own farmyard while he was about his
farming activities.
…
On consideration of
all these mitigating and aggravating factors the latter seem to me to
far outweigh the former. Seen in the context
of the recognised
objects of punishment, the interests of society seem to me to demand
that deterrence and retribution must outweigh
considerations of
reformation. I therefore share the view of the trial Judge that this
is one of those exceptionally serious cases
where the death sentence
is imperatively called for and where it is the only proper sentence.”
These comments of
the Supreme Court of Appeal, as regards the removal of children from
their homes and/or playgrounds, taken to
isolated areas and brutally
abused and killed, generally by persons known to these children, are
as relevant today as they were
then, save for the form of sentence.
[60] Having regard
to the evidence of Coetzee, accused is not the person who one can
easily conclude that simply because of his
youth, rehabilitation is a
real prospect in the ordinary course, even after a long period of
imprisonment.
[61] In my view, it
cannot be said that the circumstances in this case call for a
departure from the prescribed sentence. After
careful consideration
of all relevant factors, the court is satisfied that the following
represent a just, fair and informed pronouncement
on sentence:
1.On count 1, of
premeditated murder, accused is sentenced to imprisonment for life.
2.On count 2, of
kidnapping, the accused is sentenced to 8 (eight) years imprisonment.
The sentence on
count 2 is to run concurrently with the sentence in count 1.
The accused is
declared unfit to possess a firearm.
DM THULARE
ACTING JUDGE OF
THE HIGH COURT