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2013
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[2013] ZAGPPHC 250
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Mazibuko v S (A236/2013) [2013] ZAGPPHC 250 (16 August 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
number: A236/2013
DATE:16/08/2013
In
the matter between : -
ELIZABETH
NINA
MAZIBUKO
...................................................
Appellant
and
THE
STATE
..................................................................................
Respondent
JUDGEMENT
JANSE
VAN NIEUWENHUIZEN AJ
[1]
On 11 October 2011, the appellant pleaded guilty to a charge of
murder in the Nigel Regional Court. The appellant was convicted
accordingly and sentenced to 25 years imprisonment.
[2]
The appeal only lies against the sentence imposed by the court a quo.
FACTS:
[3]
The circumstances that gave rise to the appellant's conviction, are
extremely tragic.
[4]
The appellant, a 27 year old female, administered poison to her four
year old son, which resulted in his untimely death.
[5]
The appellant also took poison in an attempt to commit suicide, but
was revived at hospital.
[6]
As stated supra, the appellant pleaded guilty to the charge of
murder. From her plea explanation, the following facts emerge:
i)
at the time of the incident the appellant was staying at her
boyfriend's residence, because she was chased away from her family
residence due an argument she had with her brother and eldest sister;
ii)
the appellant is HIV positive and her status as such, contributed to
the fact that she was chased away from her family residence.
The
hostile attitude of the appellant's family towards her, is
demonstrated by the fact that her brother told her he wanted nothing
to do with her children, should something happen to her;
ii)
on the morning of the incident, the appellant did not feel well
enough to go to work and suspected that her condition is attributable
to her HIV positive status;
iii)
she felt that it was the end of her life and that she was going to
die;
iv)
she realised that no one will look after her son if she dies and
decided to commit suicide and kill her son;
v)
she gave her son yoghurt with rat poison and he died on the scene.
EVIDENCE
IN MITIGATION OF SENTENCE
[1]
The appellant testified in mitigation of sentence.
[2]
She, inter alia, testified that:
i)
she is unmarried and was at the time of her arrest on 1 June 2011,
working at Jet Store;
ii)
when she realised on the morning of the incident that she might die,
she became scared and decided to end her life and that
of her son;
iii)
she first gave her son the yoghurt mixed with rat poison and then ate
some herself;
iv)
when she realized she and her son is dying, she phoned her boyfriend
for help;
v)
she only woke up in hospital;
vi)
she has two other children, who were taken away by social services.
STATUTORY
FRAMEWORK:
[9]
In terms of section 51(1) read with Part I of Schedule 2 of the
Criminal Law Amendment Act, Act 105 of 1997, the court must
impose a
sentence of life imprisonment, if it is found that a murder was
planned or premeditated.
[10]
The court a quo found that the murder of the appellant's son was
premeditated and sentenced the appellant in terms of section
51(1)
read with section 51(3) to 25 years imprisonment.
[11]
The court a quo, therefore found, correctly so, that substantial and
compelling circumstances existed to justify the imposition
of a
lesser sentence than imprisonment for life.
[12]
In terms of section 51(2) read with Part II of Schedule 2 of the Act,
the court must impose a sentence of 15 years imprisonment
if the
person convicted on a murder charge is a first offender.
GROUND
FOR APPEAL
[13]
Mr Kgagara, who appeared on behalf of the appellant, submitted that
the murder was not premeditated and that the court a quo
erred in
sentencing the appellant in terms of section 51(1) of the Act.
[14]
According to the South African Concise Oxford Dictionary,
"premeditated" means "think out or plan (an action,
especially in crime) beforehand".
[15]
The "plan beforehand" portion of the definition is, in my
view, already referred to in section 51(1) in addition
to
premeditation.
[16]
In the premises, the question arises whether the appellant thought
out the murder beforehand.
[17]
If one has regard to the uncontested evidence of the appellant, she
took the decision to take her own life and that of her
son, shortly
after she awoke on the day of the incident.
[18]
She was manifestly desperate and immediately executed her decision.
[19]
Flaving regard to the appellant's emotional condition and the manner
in which the murder was committed, there are clearly no
facts to
substantiate the finding that the murder was premeditated. It would
appear that the murder was committed at the spur of
the moment
without properly considering the result.
[20]
The court a quo erred in this regard and the sentence falls to be set
aside.
APPROPRIATE
SENTENCE
[21]
Mr Kgagara referred to the recent decision in S v Mtshali
2012 (2)
SACR 255
KZD.
[22]
The unfortunate facts in the Mtshali matter is almost at par with the
facts of this matter.
[23]
The accused, a 26 year unmarried mother of two children,
respectively, 8 and 3 years old, murdered the children.
[24]
The accused worked on a farm and her two children was under her care.
Her grandmother assisted in caring for the children and
the accused
was dependent on her grandmother for maintenance. The father of the
children did not contribute to their maintenance,
save for clothing
he send from time to time.
[25]
On an arranged visit with the children to their father, the father
severely assaulted the accused in front of the children.
[26]
She was chased away by the father of the children, but after
intervention of an uncle of the father, succeeded in staying one
night at the residence.
[27]
The following morning she left with the children and spend that night
in a bush.
[28]
The accused was extremely desperate and decided to take her life as
well as that of her children. She took a cocktail of various
tablets,
thinking the tablets would kill her. She, thereafter, strangled both
children in their sleep with a cellphone-handset
cord.
[29]
The accused did not die and reported the next morning to the nearest
police station.
[30]
The accused pleaded guilty and was convicted of the murders. After
conviction, Penzhorn AJ, requested a probation officer's
report. A
certain Prof Lourens Schlebusch, an expert in 'extended suicide',
became involved and after evaluating the accused filed
a
comprehensive report, intra alia, dealing with the psychological
profile of the accused.
[31]
The state also appointed an expert, Prof BJ Pillay, who in essence
confirmed the views expressed by Prof Schlebusch in his
report.
[32]
It appeared from the reports that the accused was severely depressed
at the time she committed the murders. She had feelings
helplessness
and felt rejected by society. She did not want her children to suffer
the same fate.
[33]
In the Mtshafi matter a 10 year sentence wholly suspended coupled
with correctional service was imposed on the accused.
[34]
The appellant had legal representation at trail. It is disconcerting
that neither the appellant's attorney nor the presiding
magistrate
requested a social worker and/or probation officer's report prior to
sentencing.
[35]
Be that as it may and having regard to the following remark by
Smalberger JA in S v Ingram 1995 (1) SACR A at 8j - 9a:
"Murder,
in any form remains a serious crime which usually calls for severe
punishment. Circumstances, however, vary and the
punishment must
ultimately fit the true nature and seriousness of the crime."
:ORDER;
[36]
In the premises, I propose the following order:
1.
The appeal is upheld.
2.
The sentence of 25 years imposed by the court a quo is set aside.
3.
The sentence is substituted with the following order:
"The
accused is sentenced to 5 years imprisonment in terms of section
276(1)(i) of Act 51 of 1977.
4.
The sentence is to run from the date of the appellant's arrest on 1
June 2011.
Janse
Van Nieuwenliuizen AJ
Acting
Judge of the North Guteng High Court, South Africa
I
agree
D
Lamprecht AJ