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[2009] ZAGPPHC 393
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S v Mkhwebane and Others (CC72/2007) [2009] ZAGPPHC 393 (15 October 2009)
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE NO: CC72/2007
DATE: 15 OCTOBER
2009
In the matter
between:
THE STATE
and
RICHARD BOB
MKHWEBANE
.....................................................................
FIRST
ACCUSED
BENJAMIN
KEKANA
......................................................................................
SECOND
ACCUSED
MALEETO
MOLOTO
..........................................................................................
THIRD
ACCUSED
SENTENCE
PHATUDI (J)
[1] Richard Bob
Mkhwebane Benjamin Kekana and Johanna Mmaphuti Mponseng Maleeto
Moloto, the convicts before me, have been convicted
of Murder read
with the provisions of Section 51(1) of the Cnmmal Law Amendment Act
105 of 1997. I will, for convenience, refer
to them as Accused 1. 2
and 3 respectively.
[2]
Whereas sentencing an offender was, still is. and will always never
be an easy task There are numerous factors that one must
satisfy
himself before considering any appropnate sentence for an offender On
this basis. I enquired from counsel for the state
if the accused were
indeed made
aware
of
the applicability of the Criminal Lav; Amendment Act; Act 105 of 1997
(Minimum Sentence Act) "The Act".
[3]
Counsel for the state, accompanied by the counsel for accused,
confirmed that at the beginning of the trial, the state applied
unopposed
for
the amendment of the charge to read as set out in paragraph 1 of my
judgment I enquired to the said applicability to satisfy
mysetf if
the legally represented accused were aware to that effect.
[4]
It must be borne in mind that
none
of
the legal representatives raised this issue throughout the trial up
to and including mitigation
[5]
The principle set out in
S
v Makatu
2006 (2) SACR 582
SCA
state
(at head note) that:
'it was incumoent on
the state (page 583) to specify the case to be met in such a way that
the accused person could appreciate properly
not only the charges but
the consequences thereof'
[6]
In
Makatu.
the
appellant was sentenced in terms of the provisions of Section 51 (1)
of
the
Act
whereas,
the indictment referred to the provisions of Section 51(2) of the
Act. The court held at page 585 that such a sentence
is a blatant
misdirection
[7] It was further
held that as a general rule where the state charged an accused with
an offence governed by Section 51(1) of the
Act. it should state this
in the indictment'
[8]
I am satisfied, after reassurance, that the legally represented
accused was fully
aware
from
the beginning of the trial when the state applied
unopposed
that
the provision of Section 51(1) of the Act is applicable
[9] Based on that
finding, this court is empowered in terms of Section 51 (1) of the
Criminal Lav/ Amendment Act, Act 105 of 1997
(the Act) to sentence a
person who is convicted of an offence referred to Part 1 of Schedule
2. notwithstanding any other law.
but subject to subsection (3) and
(6). to imprisonment for life. According to Schedule 2 Part 1. one of
the offences covered is
murder, when (a) ‘It was planned or
premeditated
[10] Section 51(3)
(a) provides that;
’
if
any court referred to m subsection (1) or (2) is satisfied tnat
substantial and compelling circumstances exist which |ustified
the
imposition of a lesser sentence than the sentence prescribed in those
circumstances on the record of the proceedings and must
thereupon
impose such esser sentence...”
[11] This court is
empowered to exercise its own discretion to determine if there exist
substantial and compelling circumstances.
[12] Mr Van Der
Westhuizen, counsel for Accused 1, submitted that the accused, born
on 20 December 1962 (43 turning 44 in December
2006) when the offence
was committed. He submitted further that the accused parents died
when he was very young. He was raised
by Mkhwebane's family, which
surname he ultimately adopted. He left the country in 1982 artd
completed matric through correspondence
while in exile He received
military training at ANC's Mkonto we Siswe in Mozambique and Angola
He returned to South Africa in 1991
He married but his wife passed on
in 1992 He has a 17 year old child who has since been raised by his
in-laws to date.
[13] The Accused 1
was once employed by the South African National Defence Force from
1992 -1995 He resigned for brick making business
that later
collapsed. He never had a fixed source of income since.
[14] Mr Van der
Westhuizen. submitted further that the Accused has since 26 September
2006 been in custody.
[15] Further
thereto, he referred me to Section 271 of Criminal Procedure Act. Act
51 of 1977 (CPA) in considenng the accused s
previous convictions. He
said that the said previous convictions are older than 10 years. He
must thus be regarded as a first offender.
[16] Counsel
submitted that the Accused conduct of revealing and bringing to book
the actual perpetrators, the planning and execution
of the offence
including up to concealment of the deceased body, be regarded as
substantial and compelling, compelling the court
not to impose the
prescribed sentence “Life imprisonment"
[17] Dimakatso
Jennet Kekana. the wife to accused 2, was led to testify in
mitigation for and on behalf of Accused 2 She testified
that she is a
retired nurse She is married to Accused 2 and their marriage is
blessed with 2(two) children who are 44 and 29 years
respectively
Their First child is blessed in her marriage with 2 children who
happen to be the accused grand children
[18] She pleaded
with the court to exercise mercy when sentencing Accused 2 on the
basis that they (accused 2 and herself) are indebted
to creditors,
the major being the bank loan which is secured by their house as a
collateral.
[19] She opined that
the accused mind and actions have been muddled by his ‘affair'
(which she was not 100% sure of) with
Accused 3.
[20] She conceded
that the offence committed is very serious and that the sentence will
not return the deceased to life.
[21] In addition
thereto, Mr Makola. submitted from the bar that the accused was 67 at
the time of committing the offence. He has
just turned 70 on the 27
September 2009. He said further thereto that the accused suffers from
High Blood Pressure and Sugar Diabetes
He suffered from the said
ailment since 1995 (during Rugby Wold Cup as his wife placed on
record.).
[22]Mr
Makola said that the argument levelled on behalf of accused 1 in
respect of the old previous conviction, be
mutatis
mutandis
applied
as that is '
res
ipsa loquitur
."
He however left all other issues in the capable hands of this court.
[23] Mr Sehumane.
counsel for Accused 3. submitted that the accused was 34 years at the
time of the commission of the offence She
is now 37 years and
residing at house 4378 Orchards. Rosslyn. North Gauteng.
[24] He submitted
that the accused is taking care of her 4 younger brothers. She is the
bread winner and all her brothers are wholly
dependent on her She has
a business with 5(five) employees
[25] He said that
the accused is a first offender He submitted further that the accused
still maintain that she did not partake
in the planning and execution
of the offence. He said that the appropriate sentence would be 10
Years, 5 years thereof be suspended.
[26] In rebuttal
thereto. Mr Mashilo, counsel for the State, submitted that the crime
committed is very serious in its complete
nature. He said that it is
clear from the evidence tendered surrounding the commission of the
offence proved that Accused 2 and
3 planned the orchestrated the
offence Accused 2 caused involvement of Accused 1 it the execution.
[27] He said that
the planning was not 'in a spare of the moment ". The planning
was made some days before Accused 2 and 3
meant what they did and
never changed their minds.
[28]
When one evaluates the evidence in totality, it is indeed clear that
the planning and execution of the offence took place on
a number of
days. The deceased lived with Accused 3 in the same house not knowing
that he was walking through the darkest shadow
of his death. Accused
1 delayed the execution by his tactics of (i) buying groceries with
the money given to buy a firearm and
(ii) the removal of a striking
pin of the firearm handed to him by Accused 2.
[29] I do indeed
find that Accused 2 and 3 involved Accused 1 in their merciless plan
to execute the crime. I further find that
their action of disposing
of the body and scrubbing of the blood was with intent to conceal the
evidence in completion of their
planned deed.
[30] Mr Mashile
further said that Accused 1 s "coming out" should not be
seen or considered as compelling circumstances.
He said had it not be
for Accused 2 and 3's failure to honour their agreement with Accused
1, he would not have ‘spilled
the beans'.
[31] Mr Mashile
submitted that Accused 2 and 3 showed no remorse for what they did.
He said that their ailments. High Blood sugar
diabetes and chronic
headache by accused 2 and 3 respectively, should not be considered as
compelling circumstances justifying
deviation from imposing the
prescribed minimum sentence.
[32] He submitted
that life imprisonment is an appropriate sentence in the
circumstances.
[33] He conceded
that the previous convictions are old and should not be considered
and that Accused 1 and 2 be regarded as first
offenders. He. however,
stated that that’ should not be regarded as compelling to
deviate from the prescribed sentence
[34]
In sentencing the quest is to sentence the offender fairly and justly
by properly consider the
triad
principle
set out in Zinn's case, being:
(i) The crime
committed;
(ii) The interest of
the society;
(iii) The offender.
[35]
The crime committed by the accused is. considenng all evidence in
totality, in my view,
HEINOUS
or better described as
UTTERLY
ODIOUS,
motivated purely by Accused 2 and 3's selfishness and/or self
centeredness. The killing was a
merciless
cold blooded
killing
of
a person in his ‘secured" home and house To further
mention how the body was charred, will be to open the wounds of
the
deceased family and sensitive members of the public with interest in
this matter
[36]
In
S V DI BLASI
1996 (1) SACR 1
(A)
where
the accused wife instituted divorce proceedings against him in United
Kingdom, the Accused harboured feelings of bitterness
and revenge
toward his wife The Accused watched and followed his wife on her
arrival in South Africa and when the opportunity presented
itself, he
shot her in the street in front of her flat.
[37] The court held
that a premeditated, callous murder should not be punished too
leniently lest the administration of justice
be brought into
disrepute'
[38] The court
increased the sentence of four (4) years, which it held to have been
"shockingly inappropriate", to 15
years. It must be borne
in mind that the Criminal Lav; Amendment Act was. at the time, not
enacted.
[39]
In
DIRECTOR OF
PUBLIC PROSECUTIONS. KWAZULU-NATAL v NGCOBO AND OTHERS
2009 (2) SACR
361
SCA
where
the appellants, after murdering the deceased took his cell phone, a
video machine and compact discs and drove away in the
deceased's
Toyota motor vehicle which they left in the bush a short while after
they murdered the deceased The court a quo sentenced
the appellants
to 18 years imprisonment on the murder charge
[40] It is recorded
at paragraph [10] page 364 that the learned in the trial court took
into account, in favour of the respondents,.,
that they were first
offenders and that "there had not seen any proof of premeditated
plans to kill the deceased or rob him”
[41] The appeal
court held at page 367 paragraph 25 that the murder was brutal and
savage Not only was the sanctity of the deceased
s home breached and
his tni3t betrayed, but he was also subjected to what appears to be a
most painful and undignified death It
is the brazen manner and the
brutality of the acts by the respondents that remained in the memory.
[42]
The supreme court of appeal further held that Courts are expected to
dispense justice This kind of brutality is regrettably
too regularly
a part of life in South Africa Courts are expected to send out clear
messages that such behaviour will be met with
the full force and
effect of the law The legislature is concerned and so too should we
be
'{page
367
paragraph 26).
[43] The sentences
of 18 years were set aside and replaced with life imprisonment.
[44] The interest of
the society was taken into consideration by the Parliament in
enacting the Criminal Law Amendment Act (better
known as minimum
sentence) for imposing of minimum sentence on certain offences
committed. The societies at large are watching
these courts with
critical eye on the type of the sentence we impose on convicts like
accused before me.
[45] It is not only
the deceased whose life has been taken in this matter, but the k>ve
of the father, breadwinner, son. uncle
and shop steward who has
indefinitely been removed from his loved ones. The children are left
fatherless for life.
[46] I am not going
to repeat all personal circumstances of each accused The question to
consider is whether the accused's “first
offender' is regarded
as substantial and compelling in the circumstances.
[47] Accused 1 the
'bean spiller', did indeed be of help in the revelation of this
utterly odious" crime committed If the accused
would have sought
indemnity in terms of section 204 of the Cnminal Procedure Act, he
would have succeeded and released In my view,
his conduct of
“remaining an accused and accepting the wrong he did. is
substantial enough to compel deviation from imposing
the minimum
sentence.
[48] All
circumstances levelled for and on behalf of Accused 2 and 3 are, in
my view, far from being substantial to compel this
court from
deviating from the imposition of the prescribed sentence.
[49] Public interest
is seeking not only justice but seeing it being done.
[50] I as a result,
come to the conclusion that the following sentence is appropriate
within the circumstances.
Accused 1- 12 years
direct imprisonment
Accused 2- Life
Imprisonment
Accused 3- Life
imprisonment
The period served In
prison while awaiting trial, be considered in calculating the period
for purposes of parole in respect of Accused
1 and 2.
AML PHATUDI
JUDGE OF THE HIGH
COURT.