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[2011] ZAKZDHC 91
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S v Taki (CC 188/08) [2011] ZAKZDHC 91 (19 January 2011)
IN
THE HIGH COURT FOR KWAZULU-NATAL, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO. CC 188/08
DATE:
19 JANUARY 2011
In
the matter between
THE
STATE
And
THOZAMILE
TAKI
JUDGMENT
(On Sentence)
NDLOVU
J
[1]
This is one of the relatively few cases in the history of our
criminal justice system, involving, amongst others, the serial
killing of human beings on a fairly large scale. On 23 December 2010
the accused was convicted of 13 counts of robbery with aggravating
circumstances and 13 counts of murder, committed on diverse occasions
during the period February to September 2007. The matter
was
adjourned to 20 January 2011 for sentence. All the charges were
subject to the provisions of section 51 (1) of the Criminal
Law
Amendment Act
[1]
(the Act). In
other words, unless I am satisfied that there are substantial and
compelling circumstances as envisaged in section
51(3) of the Act, I
shall be obliged to impose on the accused at least the respective
minimum terms of imprisonment prescribed
in the Act in respect of
each of the robbery and murder counts.
[2]
It was established in evidence that the accused’s typical
modus
operandi
was to trick his victims (all
young females) into believing that he was an employment agent and
that he was recruiting for companies
including Hullets, Nestle,
Illovo, Sezela and/or Toyota, most of which he alleged to the victims
were situated in the Umzinto area
in Kwazulu-Natal. He managed to
persuade his victims into believing and trusting him in this
regard. Using this shrewd
and cunning tactic, the accused
lured 11 of his victims to the Umzinto area and two of them to the
KwaMajola area in Port St Johns
in the Eastern Cape, where he ended
up robbing the victims of their personal items and then killing them
by strangulation or through
other unknown means. The bodies of the
deceased, which were all in an advanced state of decomposition, were
found in Shayamoya
sugarcane plantations in Umzinto and in KwaMajola
tea plantation in Port St Johns.
[3] The
traditional approach in sentencing is that the courts look at three
factors when determining an appropriate sentence, namely,
the
personal circumstances of the accused, the nature and extent of the
crime and the interests of society.
[2]
At the same time the four-fold objects of punishment are also to be
taken regard of, namely, deterrence, prevention, rehabilitation
and
retribution.
[3]
[4]
In this instance Counsel addressed the Court on the accused’s
personal circumstances and other aspects related to mitigation
of
sentence which Counsel asked me to take into account. Indeed, I will
do so. The accused is 39 years old. He is the eldest in
the family of
four children. When he was 19 years his father deserted the family
and was never seen again. Since then the accused
and other children
were taken care of by their sickly mother who subsequently passed
away when the accused was 19 years. At school
level he went up to
standard 2 which he did not even pass.
[5]
However, I can mention that, notwithstanding his professed low level
of formal education, the accused showed himself out as
a person of
average, if not somewhat above average, intelligence on general life
orientation issues. It required no genius to discern
this. For
instance, throughout the trial he kept taking down notes and
occasionally beckoning to his Counsel and giving him instructions,
especially during cross-examination of State witnesses. No
ordinary “standard 2” person would have the capacity
to
do that.
[5]
Another factor, which Counsel has sought me to consider, is that the
accused has been in custody for some 39 months already.
This
was basically about all concerning Counsel’s address in
mitigation of sentence. Of course, I will also consider other
issues
relevant for this purpose which arose during the trial, including the
fact that accused had 2 minor children aged about
6 and 4 years with
his fiancé (or former fiancé) Vusiwe Daniso, who gave
evidence for the prosecution. However, according
to Vusiwe, the
accused stopped supporting the children after she had found him with
another woman in Chatsworth on a certain day
prior to June 2007 when
she had paid him an unannounced visit. Indeed, there was no
submission from the Defence that the accused
was a breadwinner.
[6]
I am not persuaded that there was anything extraordinary or
compelling with the accused’s personal circumstances as to
have
any favourable bearing on sentence. Concerning the fact of his
incarceration for 39 months pending finalization of the case,
this
is, indeed, a mitigation factor. However, this factor is to be
weighed against some aggravating features which are discussed
hereunder.
[7]
There can be no doubt that, particularly considering his
modus
operandi
and the large number of victims robbed and murdered, the accused has
been convicted of the most atrocious and heinous crimes and,
for
that, he deserves nothing but severe custodial punishment. In
S
v Holder
[4]
it was, among other things, stated:
“
In
the application of the principle that imprisonment ought to be
avoided, the penal element must, in serious offences, of whatever
nature, come to the fore and be properly considered, if punishment
still has any meaning in the criminal law. The community expects
that
a serious crime will be punished, but also expects at the same time
that mitigating circumstances must be taken into account
and the
accused’s particular position deserves thorough consideration.
That is sentencing according to the demands of our
time.”
[8]
In the well-renown
dictum
of Schreiner JA in
R
v Karg
[5]
stated, in part :
“
It is not
wrong that the natural indignation of interested persons and of the
community at large should receive some recognition
in the sentences
that Courts impose, and it is not irrelevant to bear in mind that if
sentences for serious crimes are too lenient,
the administration of
justice may fall into disrepute and injured persons may incline to
take the law into their own hands.
Naturally
righteous anger should not becloud judgment
”.
[9]
All persons are entitled to enjoy the basic and fundamental right to
life, which is not only enshrined and entrenched in the
Constitution,
but also declared therein as a non-derogable right.
[6]
Therefore, the unlawful and intentional taking of human life is
always treated as one of the most serious crimes in the list of
all
crimes. On this basis and depending on the circumstances of the case,
the most severe punishment ought to be meted out to offenders
convicted of unlawful and intentional homicide.
[10]
According to the medico-legal post-mortem reports all the 13 bodies
and human remains were in such a state of decomposition
that the
cause of death in respect of 11 of them could not be determined or
ascertained at autopsy alone. However, although this
was the case,
physical evidence on some of the bodies was found at the autopsy
which gave some clue at to the probable or suspected
cause of death
in respect of the victims concerned. I give examples hereunder.
10.1 In three
cases the following remarks were included as part of the chief
post-mortem findings: “Ligature tied around the
wrists and
around cervical bones” (exhibit RR), “Wire type brassier
was seen entangled around the neck” (exhibit
GGG) and “A
ligature was seen around the wrists and fixed at the back”.
(exhibit PP).
10.2
Indeed, a ligature (a green rope) on the human remains can also been
in the photo album (photos 15 and 16 of exhibit T).
10.3
In two cases the causes of death were recorded as follows “Head
injuries/Compression injury to neck”. (exhibit
LLL) and
“Multiple injuries due to blunt trauma” (exhibit PPP).
10.4
In at least two instances where the cause of death was recorded as
unascertained, the following remarks were added: “Ligature
compression of the neck must be considered” (exhibit PP) and
“Compression of the neck by ligature must be strongly
considered” (exhibit RR).
[11]
On the basis of the abovementioned observations and the fact that the
accused was operating on a typical
modus operandi
it seems
safe to conclude that he probably killed all the deceased by
strangulation. Whether or not he was acting alone, this was
an issue
not before the Court and, therefore, not correct even to speculate
on. However, the evidence of Dudu Ntetha tended to
suggest, for
example, that where the accused had acquired more than one “client”
to travel with at the same time he
found some way to separate them
once they arrived at the Umzinto CBD and thus enable himself to deal
with one at a time. This,
he did to Dudu and the deceased Nombali
Ngcobo. That was how Dudu eventually managed to escape the death
trap.
[12]
It is also been held that the courts will, in general, consider a
show of lack of remorse as aggravating the offence.
[7]
Hence, a convicted person’s display of absence of contrition
will most probably count against him or her in the determination
of
appropriate sentence. The accused in the present case showed
absolutely no flicker of emotion and remorse whatsoever for
his evil
and cowardly deeds. I had to remind his Counsel on this point
immediately I discerned that he had said nothing about it
during his
address on sentence. However, Counsel had made no mistake. He advised
me that he had no instructions from the accused
on this particular
issue. Indeed, throughout the trial I watched the accused’s
conduct and demeanour. It was callous
and insensitive, to say the
least. For instance, at times he just smiled when he saw witnesses
crying due to emotional distress,
apparently occasioned by the
reality of the brutal death of their beloved ones.
[13]
It also appeared that it was part of the accused’s
modus
operandi
that the victims would pay for his fare in the taxi to
Umzinto. This was the impression gained from the evidence of Dudu
Ntetha
who told the Court that the accused had instructively told her
and the deceased Nombali Ngcobo that they must pay his taxi fare
since he was going to get them employment. Dudu had volunteered to
pay for the forward trip on the understanding that Nombali would
pay
for the accused’s fare on the return trip. Clearly, the
unsuspecting victims did not know that they were thereby
facilitating
things for their own murderer. This was yet another demonstrable
evidence of cruelty and shamelessness on the part
of the accused who,
I ponder to imagine, was ostensibly charming and compassionate
towards his vulnerable victims who were desperate
to find greener
employment pastures. He was the real jackal in a sheepskin.
[14]
The accused’s criminal record shows that he is not a stranger
to crimes involving violence and theft. On 23 January 1997
he was
convicted of housebreaking with intent to steal and theft for which
he was sentenced to 3 years imprisonment. Again on 25
February 1999
he was found guilty of robbery and sentenced to 5 years imprisonment.
[15]
In the circumstances of this case I have reason to believe that had
the accused not been apprehended on 24 September 2007 he
would have
continued on his killing spree. In my view, there is simply no
prospect that he would ever become rehabilitated. He
is an extremely
dangerous person who deserves to be removed from society permanently.
His presence outside of prison would always
remain an imminent deadly
threat to any young woman whom he met in the street. Therefore,
his permanent incarceration is
the only way to ensure that he does
not commit similar crimes again. It is also the only way to bring
some degree of consolation
to those parents whose children they will
never see again as a result of the accused’s wicked and
malicious actions.
[16]
The fact that the accused has been in custody for 39 months awaiting
the final date of this case is, in my view, far-outweighed
by the
extremely aggravating features I have just alluded to. In the event,
I am satisfied that there are no substantial and compelling
circumstances present, as envisaged in section 51(3) of the Act, in
respect of all 26 counts, which would justify me to impose
lesser
sentences than the sentences prescribed in the Act.
[17]
All relevant factors considered, the accused is sentenced as follows:
Counts
1 to 11 inclusive, 23 and 25 (i.e. 13 counts of Robbery with
aggravating circumstances):
16
YEARS IMPRISONMENT ON EACH COUNT
Counts
12 to 22 inclusive, 24 and 26 (i.e. 13 counts of Murder):
LIFE
IMPRISONMENT ON EACH COUNT
It
is ordered that the sentences imposed in respect of the robbery
counts shall run concurrently with the life sentences imposed
in
respect of the murder counts. The effect of this sentence is that the
accused is sentenced to 13 life sentences plus a total
of 208 years
imprisonment, subject to the order preceding hereto. The sentence is
to reflect my intention that the accused should
remain in prison for
the rest of his life. The relevant authority in the Department of
Correctional Services is earnestly urged
to take serious cognizance
of this intention and to refrain from ever considering the accused
for release on parole.
By
operation of the law the life sentences shall run concurrently.
[8]
NDLOVU
J
Date
of conviction: 23 December 2010
Date
of sentence: 19 January 2011
[1]
Act
105 of 1997.
[2]
This is commonly known as
Zinn
triad. See
S
v Zinn
1969
(2) SA 537
(A)
at
540G – H.
[3]
S
v Banda & others
1991 (2) SA 352
(BG) at 354D-H. See also
S
v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC) para 10.
[4]
1979 (2) SA 70
(A) at 72H (headnote) and 81B.
[5]
1961 (1) SA 231
(A) at 235H- 236C. This
dictum
has been applied with approval in many cases. See
S
v Khumalo & others
[1984] ZASCA 30
;
1984
(3) SA 327
(A)
at
330E-G,
S
v Khumalo
1984 (4) SA 642
(W) at 643G-H,
S
v B
1985 (2) SA 120
(A) at 123F-G,
S
v Dingiswayo & others
1985 (3) SA 175
(Ck) at 182G-H,
Shifidi
v Administrator-General for South West Africa & others
1989
(4) SA 631 (SWA) at 638C-D,
S
v Mncube en ‘n ander
[1991] ZASCA 24
;
1991 (3) SA 132
(A) at 156H-I.
[6]
Section
11, read with section 36, of the Constitution of the Republic of
South Act 108 of 1996.
[7]
S
v Scheepers
2006 (1) SACR 72
(SCA) at para [6].
[8]
Section
39(2)(a)
of the
Correctional Services Act 111 of 1998