S v Senatsi and Another (431/04) [2006] ZASCA 65; 2006 (2) SACR 291 (SCA) (26 May 2006)

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[2006] ZASCA 65
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S v Senatsi and Another (431/04) [2006] ZASCA 65; 2006 (2) SACR 291 (SCA) (26 May 2006)

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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE NO: 431/2004
In the matter between
THUSUKULA SENATSI FIRST
APPELLANT
SOKOLISILE
QOSHA-QOSHA SECOND APPELLANT
and
THE STATE
RESPONDENT
CORAM: FARLAM, MTHIYANE and NUGENT JJA
HEARD: 18
MAY 2006
DELIVERED: 26 MAY 2006
Summary: Sentence – whether the sentences imposed by the trial
court were appropriate – Delay in bringing appeals before Appeal
Court to be avoided.
Neutral
Citation: This judgment may be referred to as Thusukula Senatsi &
Another v The State [2006] SCA 61 (RSA)
___________________________________________________________
JUDGMENT
MTHIYANE
JA:
MTHIYANE JA:
[1] The appellants were arraigned in the Cape High Court before
Griesel AJ and two assessors on counts of murder, attempted murder,
robbery with aggravating circumstances and three counts of assault
with intent to do grievous bodily harm. Both were convicted and
sentenced to long terms of imprisonment. The first appellant was
convicted on all of the above counts and sentenced to a total of
30
years’ imprisonment. He received 25 years for murder, 12 years for
attempted murder, 2 years for robbery and 1 year’s imprisonment
on
each of the three counts of assault with intent to do grievous bodily
harm. The 12-year sentence was ordered to run concurrently
with the
sentence imposed in respect of murder. The second appellant was
sentenced to 20 years’ imprisonment for murder and 12
years for
attempted murder. Similarly the latter sentence was ordered to run
concurrently with the 20 years sentence imposed on the
murder count.
[2] The facts giving rise to the above charges are the following. On
the morning of Friday 30 December 1994 Mr Alexander Peter Hall
(‘the
deceased’), an attorney of the Cape High Court, was on his farm
when he was approached by the two appellants and one other
person.
They pretended to be looking for work. The first appellant was known
to the deceased and other members of his household as
he had worked
on the farm previously. The deceased did not need to employ them as
he had an adequate staff complement. But he nevertheless
agreed to
hire them as casual workers for the day.
[3] On that day the deceased and his household were preparing for a
braaivleis to be held the following evening to celebrate New
Year’s
Eve. The appellants and their companion joined in the preparations.
While the deceased was going about his chores the first
appellant
sneaked from behind him, and quite unexpectedly grabbed hold of him
and stabbed him in the back of his neck. As he cried
out in pain,
attracting his wife’s attention, the appellants set upon her too
and stabbed her several times in the upper part of
her body. When one
of the workers, Mr Patrick Rabele, charged at them with a shovel in
his hand, the first appellant pointed a gun
at him stopping him in
his tracks. Rabele fled to the neighbouring property where he sought
assistance. In the meantime the first
appellant went into the house,
where he confronted the domestic workers, Ms Jeanette Links and Ms
Elsie Rabele, assaulted them and
robbed them of R70-00 in cash and a
bunch of keys.
[4] At some stage the deceased, who was then severely injured,
managed to get to the front door where he confronted the first
appellant
and struck him with a shovel. The first appellant snatched
the shovel from the deceased and attacked him with it until he
succumbed
to the injuries he had sustained. As he lay bleeding, his
three year old son, Ashley, instinctively ran towards him. The first
appellant,
seemingly not content with the violence he had already
unleashed on the deceased and his wife and the others, kicked the
toddler
in the mouth, causing two of his teeth to be expelled from
his mouth. The alarm having been raised by Rabele, a man from the
neighbouring
property, Adam, emerged carrying an axe and amazingly
drove the two appellants and their companion off the premises. The
appellants’
companion was never found.
[5] The appellants appealed against their sentences, the first
appellant, with leave granted by Judge President of the Cape High
Court, on 18 March 1996 and the second appellant by this Court. On
appeal the sentences were attacked on five grounds. The first
is that
the trial judge accorded little weight to the mitigating factors,
especially to the appellants’ relative youth. (Both were
22 years
at the time of the offence.) Secondly, it was argued that due regard
was not paid to the element of mercy; thirdly, that
the trial judge
overemphasized the interests of the community; fourthly, that the
rehabilitative effect of sentence was not considered,
and fifthly and
finally, that too much weight was accorded to the deterrent element
of punishment.
[6] I do not think there is any merit in any of the points raised by
Mr Jurgens for the appellants. The trial judge gave a detailed
and
carefully considered judgment. He accorded weight to all the
important elements of punishment and there is no basis for contending
that any was over emphasized at the expense of the others. The judge
gave a fair, balanced judgment and afforded the appellants mercy
which they did not see fit to extend to their victims. This is
manifest in his judgment on sentence where he ordered the twelve-year
sentence for attempted murder to run concurrently with the sentences
imposed on the count of murder. The judge properly addressed
himself
to the objects of punishment and sufficiently considered the
appellants’ capacity to reform. He did so by reference to
the
dictum in
S v Shabalala
1
,
a judgment of Goldstone JA, where the learned judge of appeal said:
‘
When
giving consideration to the objects of punishment (deterrent,
preventive and retributive) it may be said that the three appellants
are capable of reform. However, in this type of case the deterrent
and retributive objects come to the fore. All members of our society
are entitled to security in their own homes. It is unfortunately a
fact of modern living that precautions, and sometimes elaborate
and
costly precautions, are taken to safeguard life and property. In the
isolated rural areas of this vast country those precautions
are more
difficult to effect than in urban areas. Our farming community too
frequently falls victim to the violent criminal. The
justifiable
outrage understandably caused thereby must be a relevant factor in
the imposition of a proper sentence in this kind of
case. Such a
sentence should act both as a deterrent to others who may be tempted
to murder or rob defenceless and innocent people.
It should also, in
a suitable case, reflect the retribution which society demands in
respect of crimes which reasonable persons regard
as shocking.’
[7] Counsel for the state submitted, correctly in my view, that the
trial judge was entitled to give due weight to the deterrent
and
retributive effect of punishment. He was not obliged to give equal
weight to each of the elements of punishment. In this regard
the
following remarks of Nugent JA in
S v Swart
2
are applicable:
‘
What
appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they must be
accorded
due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded equal weight,
but instead
proper weight must be accorded to each according to the
circumstance. Serious crimes will usually require that retribution
and deterrence
should come to the fore and that the rehabilitation of
the offender will consequently play a relatively smaller role.’
In the
present matter the relative youth of the appellants must give way to
the deterrent and retributive effects of punishment. The
aggravating
features of the case justify such an approach. This is one of those
cases where any law abiding and self respecting citizen
would be
repelled by the conduct of the appellants. They took advantage of a
man whose only sin was to offer them work. The punishment
meted out
by the trial judge fits the particular circumstances of this case and
there is no basis for us to interfere.
[8] I would accordingly dismiss the appeal.
[9] There is a further aspect that merits consideration. As already
indicated leave to appeal was granted by the Judge President
of the
Cape High Court to the first appellant on 18 March 1996, i.e. more
than 10 years prior to the hearing of the appeal in this
Court. Upon
the enrolment of the appeal for hearing in this court the President
of this court on 13 March 2006 directed the registrar
to enquire from
the Director of Public Prosecutions as to why there had been a delay
in presenting the appeal. On 29 March 2006 the
DPP responded that his
office had been unaware that leave had been granted. The first
inkling they had of an appeal was when they
received a letter from
the second appellant in December 1999 seeking leave to appeal. It was
then explained to the second appellant
what steps he needed to take
to apply for legal aid. On 8 January 2002 he wrote to the Registrar
of the Cape High Court enquiring
about his application. He followed
this up with a letter dated 18 June 2002 in which he indicated that
his application for legal
aid had been refused. In July 2002 the Head
of the Prison wrote to the registrar of the Cape High Court enquiring
about the first
appellant’s appeal. Between August 2002 and
September 2004 attempts were made to obtain a copy of the record of
the proceedings
from Sneller Transcriptions. The record runs into 18
volumes. Although the appellants filed their heads of argument in
December 2004
the respondent only received a copy in October 2005.
[10] It was still not clear whether leave to appeal had been granted
to the second appellant and if so, by whom. In order to expedite
the
matter this court granted condonation of the late noting of the
appeal and in so far as it might be necessary, leave to the second
appellant to appeal against the sentences imposed on him.
[11] In the appeal before us Mr van der Vijver, for the State
assured us that steps have now been taken in the DPP’s office to
ensure that appeals, especially those lodged by unrepresented
accused, are not lost in the system. One can imagine the prejudice
that would have occurred if the appeal by the two appellants had been
upheld or sentences of less than the period they have already
served
had been imposed. The office of the DPP is urged to ensure that such
delays do not occur in the future. Such delays deny justice
to the
persons concerned by preventing a speedy disposal of their cases.
Sadly this is not the first time this has occurred. In
S v Joshua
3
this court had to deal with a case in which there was a delay of some
six years before the appeal was heard. Fortunately the accused
was
out on bail in that case. Not so in the present matter. Such delays
are to be avoided at all costs.
[12] In the result the appeals of both appellants are dismissed.
__________________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
FARLAM
JA
NUGENT
JA
1
1991
(2) SACR 478
(A) at 483 c-e.
2
2004
(2) SACR 370
(SCA) at 378 c-e.
3
2003
(1) SACR 1
(SCA) at para 35.