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[2013] ZAGPPHC 162
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S v Maswetsa (CC 28/2013) [2013] ZAGPPHC 162 (30 May 2013)
REPORTABLE
IN THE HIGH
COURT OF SOUTH AFRICA
CIRCUIT
LOCAL DIVISION OF THE WESTERN CIRCUIT COURT
CASE NO CC
28/2013
DATE:30/05/2013
In the matter between
THE
STATE
and
ERIC
MONYAKA
MASWETSA
...............................................................
ACCUSED
Summary
Housebreaking with intent to rob
and robbery – such to be separated as a charge of housebreaking
with intent to rob on the
one hand and a robbery charge on the other
hand. This separation of charges has become necessary by virtue of
the provisions of
the
Criminal Law Amendment Act 105 of 1997
which
requires certain minimum sentences to be imposed upon convicting an
accused on specified offences. Housebreaking with intent
to rob is a
conviction that requires a court to impose a minimum sentence
different from the minimum sentence which falls to be
imposed for
robbery, whether on a first, second or third offender. Only a
conviction of robbery would set the provisions of Part
ɪɪ
of Schedule 2 of the Act in motion should an accused be found guilty
of robbery. Different sentences are provided
for to all crimes for
which minimum sentences are prescribed. The combination of a charge
of housebreaking with intent to commit
a crime and the crime itself
is no longer feasible where minimum sentences may be imposed on each
such crime.
J U D G M E N T
WEPENER J:
[1] The accused, Mr Eric Monyaka
Maswetsa, stands charged with three counts. In count 1 it is alleged
that on the 11
th
of May 2012 he unlawfully killed Joyce Seleke. In count 2 it is
alleged that on the same date he unlawfully attempted to kill
Boitumelo Seleke. Count 3 reads as follows:
‘
That
the accused is guilty of housebreaking with the intent to rob and
robbery with aggravating circumstances as defined by
s 1
of Act 51 of
1977 read with s 51 of Act 105 of 1997 in that on or about 11 May
2012 and at or near 2576 Mphatswe Street, Khuma
Location in the
district of Klerksdorp, the accused did unlawfully and intentionally
break and enter the house of Joyce Matlakala
Seleke with intent to
rob and did unlawfully and intentionally assault Joyce Matlakala
Seleke and did there and then and with force
take the following items
from her to wit, a DVD player, play station, wrist watches, cell
phones and
(an)
undisclosed amount of money her property or property in her lawful
possession, aggravating circumstances being present in that
a knife
was used.
’
[2] In my view, the words
commencing with ‘
...and
did unlawfully and intentionally assault and did then and there and
with force take the following items from her...
’,
constitute a charge of robbery. Although, the assault together with
the forceful taking of the items is robbery, no separate
charge of
robbery has been brought against the accused and the allegations
should be seen as part of one count only. There cannot
be two
convictions on count 3. Jennet, J said in
S
v Cetwayo
2002 (2)
SACR 319
(E) as follows at 321:
‘
It
is trite that housebreaking with intent to commit an offence is in
itself a substantive offence (see s 262 of Act 51 of 1977)
and that
it is a separate offence from the actual offence, for the purpose of
which the housebreaking was committed, if such be
committed. The
practice is, however, that, if the offences relate to what is in
effect a single incident, they are, unless there
is good reason to
the contrary, charged as a single offence and a single punishment is
imposed.
In confirmation
of the above I need only refer, firstly, to R v Chinyerere
1980 (2)
SA 576
(RA) where at 580A-C Lewis JP said the following:
“
One has to
bear in mind, however, that housebreaking with intent to steal and
theft are two separate offences. This is made clear
in Hunt South
African Criminal Law and Procedure vol II. The learned author traces
the history of housebreaking with intent to
steal and theft and
points out that under the old Roman-Dutch law housebreaking with
intent to steal and theft was simply regarded
as an aggravated form
of theft. However, in the modern South African law this is no longer
the case. The learned author at 644
says this:
‘
The effect
of this development is that, unlike Roman Dutch law, house-breaking
is no longer regarded as an aggravated form of
theft. The
house-breaking with intent to steal and the theft are two separate
offences, though they are in practice charged and
punished as one
offence, so that in such cases the result is the same.’”
And secondly, to
S v Zamisa
1990 (1) SACR 22
(N) where at 23 d-e Thirion J said
:
“
It is
settled practice to charge as one count the crime of housebreaking
with intent to commit a crime and the crime itself, which
was
committed in consequence to the breaking and for the purpose for
which the breaking in was committed. So much so this is the
practice
that only one sentence is imposed in respect of a conviction of
housebreaking with intent to commit a crime and the further
crime, to
commit which the breaking was effected. That circumstance, however,
does not do away with the fact that the house-breaking
with intent to
commit the crime is in itself a distinct crime which is separate
from, and not dependent upon, the crime committed
after entry has
been effected.
”
It is also a
practice which carries the approval of the Appellate Division, as it
then was, in S v S
1981 (3) SA 377
(A) where at 380H Rumpff CJ said:
“
Tegnies
gesien, is, in hierdie besondere geval, die inbraak en verkragting
net so nou verbind met mekaar as die misdade van huisbraak
met die
opset om te steel en diefstal, wat in die praktyk in ons reg as een
misdaad aangekla en gestraf kan word.”
There is no good
reason in the present case why the accused should not have been
charged and convicted of a single offence of housebreaking
with
intent to steal and theft in respect of each of the incidents
concerning which he was charged...
’
[3] This, in my view, can no
longer hold good since the promulgation of the Criminal Law Amendment
Act 105 of 1997 (the
Criminal Law Amendment Act) which
prescribes
minimum sentences for offences falling within the ambit of the Act.
The nature of the conviction is relevant when sentencing
an accused
person. It is highly relevant whether the accused is found guilty of
housebreaking with intent to rob or robbery. The
first mentioned
conviction ordinarily attracts a minimum sentence in terms of part IV
of Schedule 2 the Criminal Law Amendment
Act i.e. 5 years
imprisonment for a first offender, 7 years imprisonment for a second
offender and 10 years imprisonment for a
third offender, whilst
robbery on the one hand, in certain prescribed circumstances,
attracts a minimum sentence of 15 years imprisonment
for a first
offender, 20 years imprisonment for a second offender and 25 years
imprisonment for a third offender. Various different
sentences may be
imposed upon an accused depending on the nature of his or her
conviction or previous convictions, should he or
she be convicted of
offences referred to in the
Criminal Law Amendment Act. Also
, if an
accused is found guilty of housebreaking with intent to rob such a
conviction, in my view, is not an offence which can be
regarded as
robbery for purposes of sentencing an accused as a second or third
offender when he or she is later convicted on a
charge of robbery.
Only the substantive charge of robbery would qualify to be taken into
account when sentencing an accused person
to the minimum sentences
prescribed for robbery under the
Criminal Law Amendment Act as
a
second or third offender if regard is had to the provisions of the
Criminal Law Amendment Act.
[4] The learned judge in
Cetwayo
did not consider the effect of such a single combined charge when a
person is charged with either robbery or murder or any offence
for
which a minimum sentence has been prescribed. He dealt with charges
of housebreaking with intent to steal and theft. There
is no
prescribed minimum sentence for theft. I am of the view, that such a
single combined charge is no longer appropriate and
that there is
good reason to have the charges formulated separately. As an example,
I refer to the minimum sentence for ‘
a
second offender of such offence (part ɪɪ of Schedule 2) (
of
the
Criminal Law Amendment Act
)
is a period of not less than 20 years.
’
Part ɪɪ of Schedule 2 refers to robbery and housebreaking
with intent to rob is not referred at all in Part ɪɪ
of
Schedule 2. As indicated earlier, it appears as a substantive offence
in
Part IV
of the Schedule.
[5] It is therefore trite that
the crime of housebreaking with intent to commit a crime i.e. theft
is a substantive distinct crime
to the theft itself. See
Cetwayo
above.
[6] There now appears good reason
why the offence of housebreaking with intent to commit a crime and
the crime should be charged
as separate offences and not as a single
offence in the case of robbery, murder and rape and any offence for
which a minimum sentence
is prescribed. In matters where the charges
involve housebreaking with the intent to rob and robbery a first
offender for robbery
would attract a minimum sentence of 15 years
imprisonment whilst the housebreaking charge would attract a
different, albeit lesser,
minimum sentence of 5 years imprisonment.
The same would apply to housebreaking with intent to murder or rape.
I leave aside the
fact that lesser sentences may be imposed when
substantial and compelling circumstances allow for lesser sentences
than the prescribed
minimum sentences to be imposed.
[7] A charge of housebreaking
with intent to rob and robbery also read with
s 51
of the
Criminal
Law Amendment Act would
, in my view, be technically ineffective as
the
Criminal Law Amendment Act would
apply differently to a charge of
housebreaking with whatever further allegations may be made in the
charge sheet. It is thus highly
relevant whether an accused is found
guilty of robbery or murder or rape and also of housebreaking with
intent to commit a crime,
when regard is had to the
Criminal Law
Amendment Act.
>
[8] It would consequently be
desirable that, because of the provisions of the
Criminal Law
Amendment Act, charges
be framed in such a manner in order to
separate the allegations of housebreaking with intent to commit an
offence from substantive
charges such as robbery and all other
charges where a minimum sentence is prescribed upon conviction.
[9] In the matter before me the
third count is a charge of housebreaking with intent to rob and
robbery and as there is no separate
count of robbery. In the words of
Grosskopf J (as he then was) :
‘
the
accused was, not, however charged with theft or attempted theft, and
in the circumstances the accused cannot now in addition,
be convicted
of either theft or attempted theft as suggested by the magistrate.
’
See
S
v M
1989 (4) SA 718
(T) at 720 G where Grosskopf J was quoted with approval. I deal with
the wording of the present count 3 hereunder.
[10] In this matter, after the
accused pleaded guilty to the three counts, his legal representative
handed in a statement wherein
the accused admitted all the elements
of the three counts. The admissions followed the wording of the
charges. Thereafter, a further
short description of the actions of
the accused is set out. Having been satisfied that the accused
pleaded guilty to the three
counts, the State accepted the plea and I
found the accused guilty on all three counts and the question of
sentence stood over.
[11] When evidence was lead for
purposes of sentence the accused also gave evidence. He said that he
accompanied two others to the
house of the deceased in order to go
and break in to the house and remove articles therefrom. The three of
them removed roof tiles
at the house and waited in the ceiling for
several hours when one of the three of them mentioned that he was
almost certain that
the owner of the house had left. The three of
them then went into the house from the ceiling. The accused went to
search in some
drawers when he realised that the owner of the house
had not left but was still there. The two other persons followed her
and the
accused heard screams and thereafter saw the other two
housebreakers dragging her into a room. He carried on stealing items
from
the house. I need go no further regarding the facts for purposes
of the matter at this stage. I had some doubt as to the intent
with
which the accused acted when breaking and entering the premises and
was of the view that he may have made an incorrect admission
regarding the intent with which he acted that day as his evidence was
that they intended stealing items from the house. Milton
Criminal
Law and Procedure
Vol
II 3ed (1996) 806 par 5 seems to favour the fact that the intent to
commit an offence must be present when both the breaking
and entering
are effected. He relies for this view on
R
v Laforte
1922 CPD 487
at 500;
R v Willy
Ovamboland
1931 SWA
11;
R v Andries
1958 (2) SA 669
(E) at 671. Save for
S
v Andries,
I do not
think that the cases referred to clearly support such a view or in
any event do not supply authority for such a view. On
the basis that
the law is correctly set out by Milton, I asked counsel to address me
on the issue and whether I should apply the
provisions of s 113 of
the Criminal Procedure Act 51 of 1977 (The
Criminal Procedure Act) in
order to record a plea of not guilty on count 3 as the accused may
have incorrectly admitted the fact that he had the intention
to rob.
[12] The evidence of the accused
shows that he accompanied the other two persons with the initial
intention to steal goods in the
house and not to commit robbery.
However, once the accused was aware that the deceased was overpowered
in order to facilitate the
theft, which he carried on executing after
she had been overpowered by the other two co-perpetrators, the
element of force which
is necessary for a charge of robbery, was
present. The accused admitted that he ‘
acted
together with common intent’
with the other two persons. He consequently had a common purpose with
them to overpower persons who came in their way and in fact
did
associate himself with the use of force to continue with the theft of
goods. Yet, the evidence is that the accused went to
the house of the
deceased in order to steal. The question of whether a person can
change his or her intent whilst in the process
of executing his or
intention to steal or whether
dolus
eventualis
would be
sufficient for a conviction of housebreaking with intent to rob and
robbery are questions that I do not have to answer.
[13] Ms Nguni argued that the
allegations contained in the charge sheet are wide enough to
encompass both a count of housebreaking
with intent to rob and a
substantive charge of robbery. Robbery consists of
‘
the
violent removal and appropriation of movable corporeal property
belonging to another’
.
See CR
Snyman
Criminal
Law
at p30.
These
allegations are clearly set out in count three and Mr Nel conceded as
much. Ms Nguni therefore argued that the accused was
correctly found
guilty of housebreaking with intent to rob and robbery with
aggravating circumstances rather that housebreaking
with intent to
rob only. As the charge which was read out to the accused covers a
substantive charge of robbery, Mr Nel was unable
to advance reasons
why the accused should not have been found guilty of housebreaking
with intent to rob and robbery with aggravating
circumstances.
[14] CR Snyman
supra
,
p 550 says:
As
‘
housebreaking
with intent to steal” is a crime in its own right, X is charged
with two crimes if he is charged with “housebreaking
with
intent to steal and theft”. However, it is still
uncertain whether a conviction of “housebreaking with intent
to
steal and theft” is a conviction of a single crime or of two
crimes.
In
practice this is unimportant, for even if one holds that two crimes
have been committed they are treated as one crime
for
the purposes of punishment
.
It is submitted that the better view is that two crimes have been
committed’.
(Foot notes omitted). (My underlining).
[15] This approach finds support
in
S v Maunye and
others
2002 (1) SACR
266
T. At 277 F – 278 B Stegmann J, in a full bench decision,
said
‘
An
incident of housebreaking with intent to steal and theft, committed
with a single intention, is to be regarded as essentially
the crime
of theft, with housebreaking as a factor that tends to aggravate the
seriousness of the offence and therfor the severity
of the sentence’.
Also see
S
v Nell
2009 (2) SACR
37
C.
[16] In S v Kulati
2002 (2) SACR 406
E, a full bench said:
‘
The
actual offence for the purpose of which the housebreaking was
committed if such crime be committed is also a separate offence
but
in practice is charged as one offence with the crime of housebreaking
with intent to commit that offence. In practice the two
crimes are in
effect committed during a single incident and therefore charged as
one single offence and a single punishment is
imposed. That, however,
in my view, does not do away with the fact that in fact two
separate crimes were committed. In
R
v O'Connell en 'n Ander
1960 (3) SA 272
(O) Potgieter J, as he then was, said the following
at 272H:
“
Waar
'n persoon derhalwe aangekla word van huisbraak met die doel om te
steel en diefstal word hy in werklikheid aangekla van twee
substantiewe misdade.”'
[17] In all the circumstances I
am satisfied that count 3 encompasses a substantive charge of robbery
and that the admissions made
by the accused were sufficient to
satisfy the conviction on that count. When the composite count of
housebreaking with intent
to rob and robbery is looked at
objectively, the effect of such a conviction would be that an accused
is effectively found guilty
of both housebreaking with intent to rob
and of robbery as the two charges were put as one and because of a
practice that developed
over the years that ‘…
they
are in practice charged and punished as one offence
’
– see
Cetwayo,
supra
. I am
consequently of the view that the minimum sentence prescribed for
robbery would be applicable in this matter. Although
charged as one
offence, the sentence to be imposed on the accused is regulated by
the minimum sentence prescribed for robbery as
he has been convicted
of robbery.
[18] I am, however, of the view
that the better practice would be that an accused person should be
separately charged with the offence
of housebreaking with the intent
to commit a crime and the crime itself for the reasons set out
hereinbefore. Should an accused
be convicted of a number of offences,
the cumulative effect of the sentences imposed is a factor which
courts have dealt with for
many years and, no doubt, will continue to
do.
[19] In
Cetwayo
the court combined the charges of housebreaking with intent to steal
and the charges of theft to form composite charges of housebreaking
with intent to steal and theft and sentenced the accused to 18 months
imprisonment on each of such composite count (part of which
sentence
was suspended). However, when the court in
Cetwayo
gave the judgment,
Part IV
of Schedule 2 did not contain
housebreaking with intent to commit an offence.
Part IV
was amended
in 2007 to its present form to incorporate housebreaking with intent
to commit an offence and which is punishable with
a minimum sentence
of 5 years imprisonment. The amended
Criminal Law Amendment Act
indeed
has far reaching consequences regarding the passing of
sentence regarding the different offences referred to therein. In my
view,
it would be wrong to combine different offences for which
different minimum sentences are prescribed into one charge, since the
material amendment of the
Criminal Law Amendment Act in
2007.
[20] Having dealt with the
aforesaid issues and before judgment, the State applied to lead
further evidence. Mr Nel objected but
after argument, I allowed the
request to lead further evidence and said that I would give my
reasons for it in due course. The
following paragraphs embody those
reasons.
[21] During his evidence on
sentence the accused gave a version that he was the one to steal
things while his co-perpetrators were
the ones that killed the
deceased. Ms Nguni did cross examine the accused when he testified
but not on an important fact i.e. that
the knife found at his house
contained the Deoxyribonucleic Acid) (DNA) of the deceased. This
evidence, she argued would controvert
the version of the accused that
the he did not carry the knife that night, which aspect is relevant
to sentence. In
S v
Felthun
1999 (1) SACR
481
(SCA), the Supreme Court of Appeal held that test whether to
allow the State to reopen its case depends on several factors.
Firstly,
a trial court has discretion to allow a party to reopen his
or her case and to lead evidence at any time up to judgment. In this
case, the State wished to lead evidence on sentence which was not at
hand at that time and the court had not yet pronounced on
the
sentence to be imposed. A court should however, exercise the
discretion judicially upon a consideration of all the facts of
the
case and having regard to considerations mentioned in cases and
applying them as guidelines and not inflexible rules. At p486
C -
487 H Vivier, JA said:
‘
That a
trial Court has a general discretion in both civil and criminal cases
to allow a party who has closed his case to reopen
it and to lead
evidence at any time up to judgment is beyond doubt. The proper
approach is that the Court's discretion should be
exercised
judicially upon a consideration of all the facts of each particular
case, having due regard to the considerations mentioned
in the cases
and applying them as guidelines and not as inflexible rules. In
Mkwanazi
v Van der Merwe and Another
1970 (1) SA 609
(A) Holmes JA stated the correct approach thus at
616B - D:
“
It
is inappropriate for judicial decisions to lay down immutable
conditions which have to be satisfied before the relief sought
can be granted. Over the years the Courts have indicated certain
guiding considerations or factors, but they must not be regarded
as
inflexible requirements, or as being individually decisive. Some are
more cogent than others; but they should all be weighed
in the
scales, the pros against the cons.”
Mkwanazi's
case was concerned with Rule 28(11) of the Magistrate's Court Act 32
of 1944 but, as Holmes JA pointed out at 616D in his majority
judgment, the Supreme Court has, inherently, much the same discretion
to allow evidence before judgment. The majority of this Court
held on
the facts of that case that fresh evidence should have been admitted
by the magistrate after both sides had closed their
cases even though
there was no satisfactory explanation as to why the evidence had not
been led before. The omission to lead the
evidence was, however, not
deliberate and there was no prejudice to the other side.
In
Hladhla
v President Insurance Co Ltd
1965 (1) SA 614
(A) this Court held that new evidence in that case
should have been allowed after the argument stage. In his judgment
(at 621E
- G) Van Blerk JA referred to the danger mentioned
by
Wigmore
para 1878 that to make a general practice of introducing new evidence
when, after argument, it is found where the shoe pinches,
may lead to
perjury. Van Blerk JA then pointed out, however, that
Wigmore
in the same passage goes on to say that:
"
Nevertheless,
situations might easily arise in which an honest purpose may justly
be served, without unfair disadvantage, by
admitting evidence at
this stage; and it has always been conceded that the trial Court's
discretion should not be hampered by an
inflexible rule."
With regard to
the test to be applied to an application to reopen see
further:
Oosthuizen
v Stanley
1938 AD 322
at 33 and
Barclays
Western Bank Ltd v Gunas and Another
1981 (3) SA 91
(N) at 95C-96H.
The considerations mentioned by the Courts include
the following: the reason why the evidence was not led
timeously, the degree
of materiality of the evidence, the possibility
that it may have been shaped to relieve the pinch of the shoe, the
possible prejudice
to the other side, including such factors as the
fact that a witness who could testify in rebuttal may no longer be
available,
the stage which the proceedings have reached and the
general need for finality.
……
.
In the light of
the above decisions there is no room for the absolute rule contended
for by counsel for the appellant namely that
the trial Court's
discretion to admit evidence for the State after the close of the
defence case should be limited to where new
matter is introduced
which the State could not foresee. An inflexible rule of this
kind hampers the trial Judge's discretion
and cannot be supported. In
each case it is a matter for the trial Judge's discretion whether, on
the facts of that case and applying
as guidelines the considerations
mentioned in the cases, the new evidence could be allowed without
injustice to the accused.
With regard to
the question of possible prejudice counsel for the appellant
submitted that an accused is inevitably prejudiced when
the State
case is reopened since he may then be compelled to testify to answer
the new evidence. I do not agree. An accused is
never compelled to
testify. His right to remain silent remains unaffected. In the
present case the defence was given the opportunity
to lead further
evidence but the appellant was not compelled to testify. Counsel
for the appellant further submitted that
in a trial of more than
one accused, prejudice to any accused will inevitably result if a
co-accused is recalled by the court under
s 167 of the Act, as
happened in the present case. Again I am unable to agree. Apart from
the fact that his co-accused was recalled
by the trial Court at the
request of the appellant's counsel so that the appellant could
not have been prejudiced, his right
to remain silent was unaffected
by the recall of his co-accused. He himself elected to testify
again’.
[22] In this matter it is not a
question that the State is feeling the proverbial pinch of the shoe.
The evidence became available
to it after the court adjourned and
before recommencing on 24 May 2013. The expert report would have been
done without had it not
become available due to the slow process with
which the State machinery works. But it became available at a very
late stage. Secondly,
the nature of the evidence has, in my view, a
high degree of materiality. Criminal courts are not to be used to
play games and
if material evidence becomes available, it should be
allowed to be produced in the absence of prejudice to the accused. In
this
case there was no prejudice to the accused as he was afforded
the opportunity to give evidence regarding the new material, if he
so
wished.
[23] The State and the accused
then, by agreement, handed in an affidavit of Regina Janse van
Rensburg in terms of
section 212
of the
Criminal Procedure Act. This
,
according to Ms Nguni, proved that the blood found on the knife of
the accused, was the blood of the deceased as the deponent
to the
affidavit compared a sample of blood of the deceased with the blood
found on the knife. The DNA result of the blood on
the knife was
found to match the DNA of the sample of the blood taken from the
deceased.
[24] At the resumed hearing the
State called several witnesses to show that the accused was found in
possession of the knife which
contained blood of the deceased. The
accused gave no explanation and indeed said top a police official the
he used the knife to
eat with. The very possession of the knife
containing blood of the deceased is, in my view, a factor with
serious consequences
for the accused. It indicates that the accused
was the person who possessed the knife which was used to kill the
deceased and his
version in which he places the blame on others, is
not true.
[25] That brings me to the
question of the sentence that is to be imposed on the accused. His
evidence regarding his participation
in the murder has been shown to
be lacking and indeed false.
[26] The accused is 26 years of
age and the father of a four month old girl. He has a grade 12 which
shows that he does have the
necessary common sense to understand
fully what his actions entailed. Although he blamed his
co-perpetrators for the incident,
it has been shown that he partook
actively and voluntarily in the offences. He knew that the
co-perpetrators had been to the house
of the deceased before and said
that they alleged that they did not have enough manpower to remove
the goods from the home of the
deceased. When one has regard to the
goods that the accused removed from the house, there is little weight
that one can give to
this allegation. When the accused was woken to
participate in the housebreaking, he willingly participated, despite
him having
a previous conviction for housebreaking and being on
parole at the time. His professed remorse lacks credibility if regard
is had
to his actions and continued false version.
[27] Upon the arrest of the
accused it appears that he admitted that neighbours saw him leaving
the premises of the deceased. He
also made a statement to a
magistrate in which he admitted his involvement. The knife, used in
the murder of the deceased was found
at his home. He accompanied the
police to point out the scene of crime. He had no escape from the
charges. It is with these facts
in mind that I have to weigh up the
remorse that the accused said he felt regarding the incident. He made
a phone call with the
cellular phone of the deceased, which led to
his arrest. The accused’s version of his participation remained
untrue to the
end. He was the person who had the knife that caused
the deceased’s death. I am of the view that his so-called
remorse is
nothing but an attempt to escape the full force of the law
for his heinous actions. He unnecessarily killed an upstanding member
of the community who worked hard to further not only her and her
family’s careers and subsistence; she assisted others,
including the family of the accused, to earn additional income. He
thereby left a young child without a caring mother and a devastated
family.
[28] Having listened to the
evidence, there is very little to be said in favour of the accused.
Whilst keeping his personal circumstances
in mind, I am mindful of
the atrocity perpetrated by the accused. He could have left the scene
without the unnecessary killing
of an innocent human being in the
sanctity of her home.
[29] The legislator has, as the
accused was advised at the outset of this trial, provided for minimum
sentences for the offences
of murder and robbery with aggravating
circumstances such as when a knife is used. In S v
Malgas
2001 (1) SACR 469
(SCA), the Supreme Court of Appeal said at para 8
and 9
that:
‘
In
short, the legislature aimed at ensuring a severe, standardised, and
consistent response from the courts to the commission of
such crimes
unless there were, and could be seen to be, truly convincing reasons
for a different response.
…
The specified sentences are not to be departed to from lightly and
for flimsy reasons which could not withstand scrutiny.
Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts
as to the efficacy of
the policy implicit in the amending legislation,
and
like considerations were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions, might have
justified
differentiating between them’
.
[30] I can find no substantial
and compelling circumstances to deviate from the sentence prescribed
by the legislator.
[31] Having regard to all the
aforegoing, I am of then view that the following sentence should be
imposed:
Count 1: Murder: Life imprisonment.
Count 2: Attempted murder: 8 years imprisonment.
Count 3: Housebreaking with
intent to rob and robbery with aggravating circumstances: 15 years’
imprisonment.
The accused is declared unfit to
possess a firearm.
W L
WEPENER
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE COMPLAINANT:
Adv
Mnguni
COUNSEL FOR THE
ACCUSED:
Adv
Nel
DATE/S
OF
HEARING:
13,
20, 24, 30 May 2013
DATE
OF JUDGMENT:
30
May 2013