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2012
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[2012] ZAGPPHC 169
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Zwane and Others v S (A916/2011) [2012] ZAGPPHC 169 (13 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: A916/2011
DATE:13/08/2012
In
the matter between:
DUMISANI
SAMUEL
ZWANE
...........................................................................
First
Appellant
SKHUMBUZA
RICHARDT
NDABA
.................................................................
Second
Appellant
MBONGENI
ISAAC NDABA
…........................................................................
Third
Appellant
and
THE
STATE
..........................................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1.
The appellants were convicted together with Mandla Petrus Khumalo on
their pleas of guilty in the Eastern Circuit Division of
murder. The
second appellant was also convicted of malicious injury to property
and the second and third appellants were convicted
of housebreaking
with the intent to steal and theft.. The crimes in question related
to an attack on their employer, a farmer,
and the theft and damage of
his
property. The second
and third appellants simultaneously shot the deceased dead with the
firearms of which they were in lawful possession.
In the course of an
incisive analysis of the facts the learned judge found that the case
had to be decided on the basis that the
motive for the crimes was a
combination of resentment for perceived unreasonableness and
unfairness by the deceased, anger over
relatively minor but constant
assaults, sexual humiliation and distaste, frustration at their
rejection by the community because
they were members of the Commandos
and finally, the total rejection of the deceased's demand that they
kill Mr Lukhele.
1
2.
The learned judge further found that the murder had not been
committed for financial gain and that the thefts had been committed
out of hotheadedness. Shortly after the murder the second appellant
pushed the deceased's vehicle, with his body in it, down a
donga,
threw away the deceased's firearm. They took home and shortly
thereafter dumped in the veld a Hi-Fi set and eight CDs which
they
had also stolen. They left a lot of valuable items at the home of the
deceased.
3.
All the appellants were in their 20s when they committed the crimes
and were found by the learned judge to be simple farm labourers
with
no education worth speaking of. Although they initially tried to hide
what they had done, they very soon began cooperating
with the police
and admitted their guilt. The learned judge had "some
reservations" about their remorse. She found that
the first
appellant had probably been influenced by the second and third
appellants into joining the conspiracy because the latter
appellants
were the first appellant's induna. The appellants were all first
offenders.
4.
Turning to the factors in aggravation of sentence, the learned judge
observed that the murder remains a serious offence, particularly
where it is premeditated and that the appellants and their co-accused
were in a position of trust in the eyes of the deceased.
The learned
judge then proceeded:
Farmers
are particularly vulnerable to attacks. By the nature of where they
live they are relatively helpless and especially so
when an attack
comes from trusted staff members. The impression must not be created
that even if ill-treatment has occurred, such
murder is a minor
offence. The murders of farmers are also unacceptably prevalent,
according to statistics which were placed before
the court by the
state.
5.
Under s 51 of Act 105 of 1997, a life sentence is mandatory for
premeditated murder unless the court finds substantial and compelling
circumstances present. The learned judge did not expressly make a
finding that such circumstances were present but sentenced the
appellants as follows:
5.1
First appellant: 20 years for murder;
5.2
Second appellant: 25 years for murder; six months for malicious
injury to property and six months for housebreaking and theft.
5.3
Third appellant: 25 years for murder; six months for housebreaking
and theft.
6.
The sentences for the lesser offences were made to run concurrently,
so the effective sentences imposed on the appellants were
those
imposed for the murder.
7.
In the course of argument on the applications for leave to appeal,
the learned judge observed that although she did not say that
the
sentences were wrong, it was a possible that she had given inadequate
weight to the situation in which the appellants had found
themselves,
ie that they could not extricate themselves from their relationship
with the appellant without ruining their own lives
and those of their
families and that there was a possibility that the sentences had been
too severe. The learned judge accordingly
granted leave to appeal
against sentence.
8.
Counsel for the appellants, in addition to repeating the factors
found in the appellants' favour by the learned judge, submitted
that
we should take into account the mental anguish which he says the
appellants are suffering because of the period which has
elapsed
between the granting of leave on 14 February 2008 and the hearing of
this appeal, a period which counsel characterised
as being
unacceptable in our constitutional dispensation.. I do not think we
should take this fact, if such it is, into consideration.
If we
interfere with the sentence, we must substitute the order which the
learned judge should, on that hypothesis, have made.
Factors arising
after sentence can axiomatically have no bearing on an appropriate
sentence.
9.
Counsel for the appellants could point to no misdirections on the
part of the learned judge but referred to the facts of numerous
other
cases which he urged us to take into consideration. I do not think
that the cases quoted to us are helpful. Each case must
be decided on
its own facts.
10.
I do however think that the learned judge placed too much influence
on the dreadful prevalence of murders of farmers in this
Division.
Such murders are generally committed for financial gain amongst
possible other motives. The present was not such a farm
murder. It
was not a "farm murder" as that term is understood in our
jurisprudence and public discourse but a murder
of a farmer on a
farm. The present was a case in which, on the facts found by the
learned judge, there had been serious provocation
on the part of the
deceased. In my view, the incorrect characterisation of the crime by
the learned judge as a "farm murder"
amounted to a
misdirection which entitles this court to substitute its own
discretion for that of the trial judge, a discretion
which I shall
now proceed to exercise.
11.
In my view, appropriate sentences for the murder would have been 12
years in the case of the first appellant and 15 years in
the cases of
the second and third appellants.
12.
I therefore make the following order:
1.
The convictions of the appellants are confirmed.
2.
The sentence imposed upon the first appellant by the trial judge for
the murder of the deceased is set aside and substituted
by a sentence
of 12 years imprisonment.
3.
The sentence imposed upon the second and third appellants by the
trial judge for the murder of the deceased are set aside and
substituted in the case of both the second and the third appellants
by a sentence of 15 years imprisonment.
4.
The sentences imposed in respect of malicious injury to property and
housebreaking and theft are confirmed as is the direction
of the
learned judge that the sentences for the offences other than murder
should run concurrently with that imposed for murder.
The effective
sentences imposed are therefore12 years in the case of the first
appellant, Dumisani Samuel Zwane, and 15 years in
respect of both the
second appellant, Skhumbuza Richardt Ndaba, and the third appellant,
Mbongeni Isaac Ndaba.
5.
All the sentences imposed upon each of the appellants are ante-dated
to 02 February 2001 in accordance with
s 282
of the
Criminal
Procedure Act, 1977
.
NB
Tuchten J
Judge
of the High Court
13
August 2012
I
agree.
SP
Mothle J
Judge
of the High Court
13
August 2012
I
agree.
HMS
Msimang AJ
Acting
judge of the High Court
13
August 2012
ZwaneNdabaNdabaA916
11
1
A
person with whom a friend of the deceased had had "trouble".
The deceased and Moolman caused the accused to intimidate
Lukhele in
various ways and then shortly before his death, the deceased
insisted that the second and third appellants murder
Lukhele.