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1985
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[1985] ZASCA 10
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S v Skenjana (469/83) [1985] ZASCA 10; [1985] 2 All SA 195 (A) (28 March 1985)
ELIJAH
SKENJANA
AND
THE
STATE
469/83/AV
IN
THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
ELIJAH
SKENJANA
Appellant
AND
THE
STATE
Respondent
CORAM
: Trengove, Nicholas,
JJA et Eloff, AJA
HEARD
: 21 March 1985
DELIVERED
: 28 March 1985
JUDGMENT
NICHOLAS, JA
In
his lifetime JOHANNES DE JONGH was a butcher.
He owned DE WET
SLAGHUIS in WORCESTER, and his wife, Mrs.
MARIA
2
MARIA DE JONGH, worked with
him there. They lived in a house nearby.
Shortly after 7 p.m. on Friday 19
June 1981, DE JONGH closed his shop, and drove to his home in his
bakkie. His wife, who was sitting
next to him, had with her a bag
containing the day's takings. Arrived at the house, DE JONGH parked
the bakkie outside the kitchen.
Tel ling his wife to remain in
the vehicle, he got out and unlocked the kitchen door. Shortly
afterwards all the lights in
the house went on, presumably when DE
JONGH threw the main switch in the kitchen. He screamed as he was set
upon by two men who
were lying in wait for him inside the house.
A
struggle
ensued
3
ensued.
Mrs. DE JONGH gave a prolonged blast on the
hooter
of the bakkie, hoping to attract the attention of
a
neighbour.
Two
men, who were also inside
the
house, came through the kitchen door to the bakkie. They broke
the window of the vehicle, flung open
the
door, and pulled out Mrs. DE JONGH and the bag she had
with
her. They dragged her into the house, seriously
assaulted
her, and tied her up with a blanket and pillows over her head. The
intruders opened a safe in a bed
room
and removed the contents. They ransacked the
house,
and then left in the bakkie with their booty.
The
police arrived on the scene shortly afterwards.
DE
JONGH was lying on his back on the kitchen floor. He
was
4
â¦
was dead. Mrs. DE JONGH was in
a severely shocked condition.
Arising
out of this incident, four men were tried
in the Supreme Court
in Cape Town on charges of (1) murder and (2) housebreaking with the
intent to rob and robbery with aggravating
circumstances. ELIJAH
SKENJANA, the present appellant, was accused No. 3.
All four of the accused were found
guilty on the second count. The State did not seek convictions in
respect of the first count,
on which they were accordingly acquitted.
The
findings of the trial Court may be summarised
as follows:
1
5
The
accused broke into the house in pursuance of a
plan
to wait there for the deceased, to overcome any resistance he might
offer, and to rob him and
his wife.
The
deceased was alive and well when he entered the
house,
but when the accused left he had been brutally
assaulted,
and was dead. There was bruising of
both
lips, over both maxillae and on the neck.
The
most probable cause of death was smothering,
although
death possibly resulted from strangulation
or
more remotely from shock in consequence of the
attack on
deceased.
3.
The
deceased died as a result of an attack or attacks
on
6
on him by one or more of the
accused. On the
evidence,
however, it was not possible to say which
of the accused was
responsible for his death.
The accused stole cash totalling
R2 280,80 and numerous articles from inside the house, and the
deceased's bakkie.
When Mrs. DE JONGH was medically
examined on the night of 19 June 1981, she was shocked and anxious.
She had sustained a number
of bruises.
The Court found aggravating
circumstances based on the
murder
of the deceased and the assault on Mrs. DE JONGH.
In
passing sentence, the trial judge (SCHOCK J)
said that the
offences committed by the accused were of
a
7
a very serious nature - so
serious that sentence of death was competent. Mr. and Mrs. DE JONGH
were elderly people. (They were 63
years old at the time). They were
both assaulted, DE JONGH fatally and Mrs. DE JONGH seriously:
although she did not suffer grievous
bodily harm, the
learned
judge said, "for a woman of her age and appearance
to
have gone through what she did at the hands of the accused, was a
most terrible and frightening experience." SCHOCK J said
that
the case was a border line one, and it was only after the most
anxious consideration that he had decided that the death sentence
was
not justified, taking into account the circumstances that there was
no proof
which
8
which
of the accused caused the death of the deceased, that no weapons were
used, and that the previous records of the accused did
not show any
appreciable propensity for violence. The case did, however, call for
a very lengthy prison sentence, because "this
type of dangerous
crime is far too rife, both in the town and country, and calls for
stern penalties". The learned judge did
not
think
that the circumstances called for any discrimination
between
the accused, and he sentenced each of them to 20
years
imprisonment.
SCHOCK
J granted leave to the appellant to
appeal
to this Court against the sentence.
The
grounds of
appeal were (a) that the trial judge did
not
9
not
give due weight to the personal circumstances of the accused; (b)
that a sentence of 20 years imprisonment was disturbingly
inappropriate, unduly severe and induced a sense of shock, and in
imposing it the trial judge over-emphasized the interests of
the
community and the gravity of the offence and overlooked the element
of mercy; and (c) the trial judge erred in not directing
that a
sentence of 4 years imprisonment for rape imposed on the accused in
1981, should run con
currently
with the said sentence of 20 years imprisonment.
The
accused's personal circumstances as disclosed
in his evidence
in mitigation were these.
He was 24
years of age. He left school when
he
10
he was in Std.
IX,
upon the death of his father. He was then aged 16. He had a
daughter aged 7 whom he supported. He was employed by Rainbow
Chickens.
In
1976 he had been
convicted on two relatively minor charges.
On 4 September 1981
he had been sentenced to 4 years imprisonment on a charge of
rape.
In giving leave to appeal, SCHOCK
J said that in deciding on the sentence he "had regard to the
accused's personal circumstances,
but felt that this was a case where
consideration of the nature of the crime which had been committed and
the public's interest
must predominate".
In my view, these personal
circumstances, when viewed against the enormity of his crime, did not
have a
great
11
great deal of weight:
A sentence of 20 years
imprisonment is undoubtedly very severe, and it is not a
sentence which I would have imposed had I been
sitting as the trial
judge. My personal view is that the public interest is not
necessarily best served by the imposition
of very long sentences
of imprisonment. So far as deterrence is concerned, there is no
reason to believe that the deterrent effect
of a prison sentence is
always proportionate to its length. Indeed, it would seem to be
likely that in this field there operates
a law of diminishing
returns: a point is reached after which additions to the length of a
sentence produce progressively smaller
increases in deterrent
effect
12
effect,
so that, for'example, the marginal deterrent
value
of a sentence of 20 years over one of say 15 years
may not be
significant.
Similarly
in regard to the aspect of retribu
tion.
This has tended to yield ground to the
aspects
of deterrence and reformation, but it is not wrong that, in
determining a proper sentence, the Courts should give some
recognition to the natural indignation and the fears and
apprehensions of interested persons and the community at large. (See
R v Karg
1961(1) SA 231(A) at 236A-B). In a case such as the present the Court
must give heed to the
demand of the ordinary citizen
for
the condign punishment of robbers who invade the sanctity of the home
to commit rapine and violent as
sault
...
13
sault
and worse. But that demand may well be satis
fied
by the imposition of less that the most severe sen
tence.
Nor
is it in the public interest that potentially valuable human material
should be seriously damaged by
long
incarceration. As I observed in
S
v Khumalo
and
Another
1984(3) SA
327(A) at 331, it is the experience
of
prison administrators that unduly prolonged imprisonment brings
about the complete mental and physical deterioration
of the
prisoner. Wrongdoers "must not be visited with punishments to
the point of being broken." (per HOLMES JA in
S
v Sparks and Another
1972(3) SA 396(A) at
410G).
The
14
The
present appellant is a young man, apparently
of
above average intelligence and he still has the potential
of
becoming a useful citizen.
But
as I have said, these are personal views;
and
sentence is pre-eminently a matter for the discretion of the trial
judge. It cannot be said that, in imposing the sentence
that he
did, SCHOCK J did not reasonably
exercise
that discretion. There is, therefore, no
basis for interfering
with the sentence.
With
regard to the third ground of appeal, the
trial
judge was asked by defence counsel for the appellant
to
direct in the exercise of his power under s. 289(2) of the
Criminal
Procedure Act
, 1977,
that the sentence of 4
years
15
years
which the accused was serving for rape should run concurrently with
the sentence of 20 years. In his judgment on sentence,
however, he
said that he did
not
think this appropriate and he was not prepared to do s
o.
The
effective sentence to be served by the appellant is one of
nearly 24 years. This is only one
year
short of a sentence of 25 years, which is "exceptionally
long
according to our practice" (
R
v Mzwakala
1957 (4)
SA 273(A)
at 278 D), and
"will only be appropriate in very
exceptional
circumstances" (
S
v Whitehead
1970 (4)
SA 424(A)
at 438 H).
Serious as were both the crimes of which the appellant was convicted,
the case is not of
the
16
the
exceptional kind which calls for such a long period
of
imprisonment.
Counsel for the State submitted
that if the sentences were to run concurrently, there would
result a disparity between the
appellant and the other accused, since
they would all be serving an effective sentence of 20 years, whereas
the appellant had been
convicted not of one but of two serious
offences. That is so, but I do not think that this consideration
should lead one to ignore
the cumulative effect of the sentence
imposed on the appellant, particularly when regard is had to the fact
that the appellant
was only 24 years of age, whereas accused No 1 was
39 and accused No 2 31 years old.
In
17
In
the result, the appeal succeeds to the extent that the sentence
imposed by the trial Courton the appellant is varied so as to
read
"TWENTY (20) years imprisonment. The
sentence
of FOUR (4) years imprisonment
imposed
on 4 September 1981 is to run concurrently with the said sentence
of
20 years."
H C
NICHOLAS, JA