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2009
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[2009] ZAGPJHC 126
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S v Twala (SS31/08) [2009] ZAGPJHC 126 (10 June 2009)
IN GAUTENG SOUTH HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: SS31/08
DATE
: 10/06/2009
In the matter between:
THE STATE
and
TWALA,
MZWANDILE VINCENT THOMAS
......................................
ACCUSED
S E N T E N C E
WILLIS, J:
[1] It is well established in these courts and reflects the
accumulated wisdom of many generations that sentence should fit the
criminal as well as the crime, be fair to the State and to the
accused and be blended with a measure of mercy. It must also reflect
the interests of society.
[2] The accused was 32 years of age at the time of commission of
these crimes. He grew up in rural Empangeni in Kwa-Zulu Natal.
His
educational attainments ended at standard 6. He moved to
Johannesburg in 1992. He has fathered three children by two
different women. I accept that there may well have been difficulties
in adjustment in moving from Empangeni to Johannesburg. I
accept,
too, that he had the disadvantage of having grown up fatherless. I
also accept that he grew up in circumstances of economic
depravation.
These circumstances are not different from that of millions of his
compatriots.
[3] Notwithstanding what I hope was a reasoned judgment finding the
accused guilty on innumerable counts, he has persisted in denying
any
involvement whatsoever. He therefore has shown no remorse for these
crimes at all.
[4] In view of the overall circumstances of this case, it is largely
irrelevant whether the form of intention relating to the murder
count
was
dolus eventualis
or
dolus directus
.
Dolus
directus
is present where there is a deliberate wilful endeavour
to ensure the death of another person.
Dolus eventualis
occurs where a person may not directly wilfully intend the death of a
person, but persists with conduct in circumstances where
he must
foresee the possibility of death ensuing. The extraordinary brutality
with which the accused and his co-perpetrator set
about assaulting
the deceased repeatedly and viciously is such that, even if the form
of intention was
dolus eventualis
, the moral reprehensibility
of nature of the intention it differs so marginally from
dolus
directus
in this particular case that it hardly bears serious
consideration.
[5] The accused perpetrated a reign of terror. The circumstances in
which he committed these crimes amount to most people's worst
nightmare. In the sanctity of their own homes, indeed in the special
sanctity of their own bedrooms, victims were brutally awoken
in the
dead of night, physically abused and also had numerous other insults
hurled at them. Their properties were ransacked and
precious items
of jewellery that did indeed have sentimental value were taken from
people.
[6] The lives of all the victims in these cases have been irrevocably
damaged. No family that was subject to these crimes will
ever fully
recover. A woman has been deprived of the love and comfort and
support of a husband. The children of the deceased have
been deprived
of the advice and guidance that an older man can give them. His
grandchildren have been deprived of a grandfather.
[7] The targeted victims of the accused were Indians and whites.
From the evidence presented in this court regarding the racial
abuse
that the accused directed at his white victims it seems clear that he
has a special hatred for white people.
[8] As a white person, it is difficult for me to sit in judgment on
such racial antipathy. I accept that the accused has been
shaped by
our history. Nevertheless, I would ask the accused, during the long
years that he will spend in prison, to reflect on
the fact that one
of his victims was an elderly woman of 80 years of age who
supplemented her meagre pension by baking pastries.
That, I hope,
will be for him an example of an honest days work. It also provides
an excellent example of the fact that it is
simply not true that
every white person sits upon ill-gotten gains and can therefore be
abused in the manner in which the accused
thought it was his right to
do.
[9] In addition to what I have said in the opening lines of this
judgment, sentence also has five important functions.
It must act as a general deterrent. In other words, it must deter
other members of the community from committing such acts or
thinking
that the price for wrongdoing is worthwhile.
It must act as a specific deterrent. In other words, it must deter
this particular individual from being tempted to act in such
a
manner ever again.
It must enable the possibility of correction unless this is very
clearly not likely.
It must be protective of society. In other words, society must be
protected from those who do it harm.
It must serve society's desire for retribution. In other words
society's outrage and serious wrongdoing must be placated.
[10] Clearly, in this case a lengthy period of imprisonment is
warranted in order to serve each of these five functions. I have
no
doubt that the community as a whole cries out aloud for a lengthy and
severe sentence in a case such as this.
[11] The court is obliged, in terms of
Section 51
of the
Criminal Law Amendment Act, No. 105 of 1997
, to
impose a sentence of life imprisonment where the accused is over 18
years of age at the time of commission of the murder, the
murder
having been committed in the course of a robbery. There is, in
addition, a compulsory minimum sentence of 15 years for
the robberies
with aggravating circumstances. This section is saved by the
provisions of (3), which permit a lesser sentence if
there are
substantial and compelling circumstances, which justify the
imposition of such a lesser sentence.
[12] There are no substantial and compelling circumstances present to
justify the imposition of a lesser sentence than life imprisonment
for the murder count, or a lesser sentence than 15 years for the
robbery committed with aggravating circumstances.
[13] The facts and circumstances of this case are,
par excellence
,
the kind of facts and circumstances that Parliament must have had
in mind when it had enacted the compulsory minimum sentence
legislation.
In any event, even if there was no such legislation and
even if I were to have a judicial discretion in the matter,
unfettered
by the
Criminal Law Amendment Act, I
would
have imposed life imprisonment for the murder and 15 years on the
robbery count.
[14] In terms of the
Correctional Services Act, No. 111 of
1998
the accused, after 25 years’ imprisonment, will be
eligible to be considered for parole, notwithstanding, the sentence
of
life imprisonment in respect of the murder count. The authorities,
at that time, will have to take into account all relevant
circumstances
including the convictions and sentences in respect of
the other counts. Certain of the complainants are here in court
today. It
is my duty to inform them, in terms of
Section 299(a)
of the
Criminal Procedure Act 51 of 1977
, as amended that,
by reason of the offences in respect of which the accused has been
convicted, they will have the right to be
consulted at the time when
the accused is considered for parole. To this end, I advise them
that, whenever they move, they should
notify the Department of
Correctional Services. It would also be helpful, I respectfully
suggest, if they were to keep in
touch with the Investigating Officer
over the years.
[15] In regard to the sentences which the court will impose, I shall
use the numbering of the counts as they appeared in the indictment,
in order to avoid confusion. For example, the accused was acquitted
on the 1
st
count, the count of theft but I shall
immediately proceed to pronounce the sentence in terms of count 2 as
it appeared originally
in the indictment.
[16] The following are the sentences which the court imposes.
Count 2, housebreaking with intent to rob and robbery with
aggravating circumstances 15 years imprisonment.
Count 3, assault with intent to cause grievous bodily harm: five
years imprisonment.
Count 4, housebreaking with intent to rob and robbery with
aggravating circumstances 15 years imprisonment.
Count 5, assault with intent to cause grievous bodily harm: five
years imprisonment.
Count 6, murder: life imprisonment.
Count 7, housebreaking with intent to rob and robbery with
aggravating circumstances: 15 years imprisonment.
Count 8, attempted rape: eight years imprisonment.
Count 9, assault with intent to do grievous bodily harm: five years
imprisonment.
Count 10, assault with intent to cause grievous bodily harm: five
years imprisonment.
Count 11, unlawful possession of a firearm: three years imprisonment.
Count 12, unlawful possession of ammunition: six months
imprisonment. Count 14, housebreaking with intent to rob and robbery
with aggravating circumstances: 15 years imprisonment.
Count 15, housebreaking with intent to rob and robbery with
aggravating circumstances: 15 years imprisonment.
Count 16, robbery with aggravating circumstances: 15 years
imprisonment.
Count 17, assault with intent to do grievous bodily harm: five years
imprisonment.
Count 19, attempted murder: eight years imprisonment.
Count 20, attempted murder: eight years imprisonment.
Count 21, attempted murder: eight years imprisonment.
Count 24, unlawful possession of a firearm: three years
imprisonment. Count 25, unlawful possession of ammunition: six
months
imprisonment. The accused is declared unfit to possess a
firearm.
[17] Items 1, 3 and 4 of the exhibits are to be returned to the
Mohammed family. Items 2 and items 5 to 21 are to be returned
to the
Munga family. Items 22, 23, 24 and 25 are to be returned to the
Kotze family. Item 27 is to be returned to Mrs Moolman.
All other
items that were exhibits other than item 30 are forfeited to the
state. Item 30, the identity book of the accused,
is to be returned
to him.