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[2009] ZANCHC 2
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S v Nyathi (K/S 58/08) [2009] ZANCHC 2 (4 February 2009)
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YES / NO
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: K/S 58/08
Delivered:
04-02-09
In
the matter between:
STATE
VERSUS
FREDDIE
BOITUMELO NYATHI
SENTENCE
Tlaletsi
J:
Introdudction
In determining an
appropriate sentence, I am enjoined to be guided by the principles
relevant to sentencing.
The
objective and purpose of punishment are deterrence, prevention,
reformation and retribution.
1.1 By
deterrence the aim is to discourage the specific offender of would be
offenders from committing similar crime.
1.2 Prevention
is to protect the public from further criminal conduct by the
accused.
1.3 Reformation
is to rehabilitate the offender where possible by education or other
correctional treatment in the most effective
way.
1.4 Retribution
is to impose a sentence which reflects the seriousness of the offence
in order to promote respect for the law and
proper punishment for the
accused.
The
triad enunciated in
S
v Zinn
1969(2)
SA 537 (A) at 540 G and subsequent decisions remains instructive to
this Court. This consists of the crime, the offender
and the
interest of the society. What must be added to the triad as an
independent element or be emphasized as part of the interests
of the
society is the interests of the victim.
A
Court hould strike a judicious counterbalance between these elements
in order to ensure that one element is not unduly accentuated
at the
expense of, and to the exclusion of other elements.
To achieve this
counterbalance a court must evaluate and balance evenly the nature
and the circumstances of the offence; the characteristics
of the
offender and his circumstances and the impact of the crime on the
victim and the community, its welfare and concern.
The
offender
The following are your
personal circumstances which have been placed on record from the bar
by your counsel:
You
were born on 20 May 1988. This means you are 20 years old. You
attended school until last year when you were doing standard
9. You
are not married and have no children or dependants. You are serving
a sentence of 4 months imposed during December 2008.
You have
previous convictions which you admitted. On 16/5/2005 you were
convicted of theft and the imposition of sentence was
postponed for a
period of three years. On 13/2/2006 you were convicted of
housebreaking with intent to steal and theft and once
again the
imposition of sentence was suspended for a period of three years. On
19/4/2006 you were again convicted of the offence
of Housebreaking
with intent to steal and theft and the imposition of sentence was
again on this occasion postponed for a period
of three years. The
condition, as was the position in the other previous convictions, was
that you should present yourself to
court in case you are called to
do so. On 8 May 2006 you were convicted of theft and again as in the
previous occasions, the imposition
of sentence was postponed for
three years on the same conditions. This offence was committed on 23
December 2005. For the purpose
of this trial, I will not regard
these previous convictions as relevant as they were not involving
violence directed at a person.
However, what is a fact is that you
are not a first offender in the general sense. It is also evident
that there were attempts
to try and give you a chance to mend your
ways by keeping you out of jail. It appears these attempts did not
bear any fruits.
The
offence
It
is common cause that the offence for which the accused has been
convicted is of a very serious nature. This murder can be
categorized
as one of the brutal and cold blooded ones. The
deceased, a helpless girl sustained twelve stab wounds. This country
is suffering
from an epidemic of violence which cannot be tolerated.
The society is outraged when a crime of this nature is committed and
expect
the Courts to take action. The fact that you had a love
relationship with the deceased and that she was now with another man,
gave you no right to act selfishly and terminate her life in such a
brutal manner. Your unwarranted jealousy deprived her of her
life.
Like all other women she had the right to live. I will however
accept that there was a measure of provocation in that the
deceased
phoned you and apologized and when you were with her to try and
resolve the problem this other man came and she ordered
you to leave.
I repeat that it is by no means justified.
Interests
of the community
A
Court fulfils an important function in applying the law in the
society. It has a duty to maintain Law and Order. As it operates
in
society, its decisions have an impact in the individualsâ ordinary
daily lives. The Court must promote respect for the law,
and in
doing so reflect the seriousness of the offence and provide just
punishment for the offender. The Court must also take
the personal
circumstances of the offender into consideration. The feelings,
requirements and protection of the society against
the accused or
would be offenders must be taken into account. Failure to do so may
result in lawlessness, disrespect for the rule
of law, self help and
vigilantism. Be that as it may, the interests of the society should
not be over emphasized to the detriment
of the personal factors of
the offender. Due weight must be given to all the elements.
However, a Court must be constantly vigilant
against the easy way out
by simply joining the ranks of the mob and impose the sentence which
the crowds in the streets are creaming
for, without properly
consulting its own calm judgment and experience. (See:
S
v O
2003(2)
SACR 147(C) at 150 G-H). he Court should also blend its sentence
with a measure of mercy.
Homes
JA
remarked
as follows in
S
v Harrison
1970(3) SA 684 (AD) at 686 A: â
Justice
must be done; but mercy, not a sledgehammer, is its concomitant.â
Act
105 of 1997
Criminal Law Amendment
Act 105 of 1997
makes provision for minimum sentences for certain
serious offences. This is intended to serve as a deterrent and also
to ensure
some measure of consistency as far as sentences for similar
offences are concerned. For this kind of murder there is a
prescribed
minimum sentence of not less than 15 years for a first
offender to murder.
The
Court should only depart from the prescribed minimum sentences where
if finds that there are substantial and compelling circumstances.
The approach that the Court should adopt is properly captured in the
case of
S
v Homareda
1999(2)
SACR 319 (W) at 325 -326a.
The
starting point is that the prescribed minimum sentence must be
imposed.
It
is only if a Court is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser
sentence, that it may do so.
In
deciding whether substantial and compelling circumstances exist,
each case must be decided on its own facts. This Court is
required
to look at all factors, mitigating and aggravating and consider them
cumulatively.
If
the Court concludes in a particular case that the minimum prescribed
sentence is so disproportionate to the sentence which
would have
been appropriate, bearing in mind that the legislature perceives the
necessity for sentences emphasizing the deterrent
component, but
equally bearing in mind that this does not necessarily lead to an
automatic increase of sentences previously imposed,
it is entitled
to impose a lesser sentence. I must at all times be mindful of the
binding principles enunciated in
S
v Malgas
2001(1) SACR 469 (SCA) (2001(2) SA 122) at para [25] at 481f-482g)
(SACR) and 1235E â 123E (SA). These principles need no
repetition
in this judgment. Needless to state that specified sentences are
not to be departed from lightly and for flimsy reasons
and that this
crime has been singled out for sever punishment and that the
sentence to be imposed in lieu of the prescribed sentence
should be
assessed paying due regard to the bench mark which the Legislature
has provided.
The
fact that you are of a youth full age, and that there is a degree of
provocation brings me to the conclusion that the imposition
of a
prescribed minimum sentence would cause an injustice to you. These
factors therefore qualify as substantial and compelling
to me to
depart from imposing the prescribed minimum sentence.
However,
a length term of imprisonment is unavoidable. I hope that you will
reflect seriously on your life and try to be a better
person. This
is the only chance that you get in your life. I urge you to take an
advantage of this opportunity and subject yourself
to meaningful
rehabilitation. Your failure to do so will van its own adverse
consequences. This should be a lesson to other who
would be
offenders of your age group that crime does not pay.
___________________
L
P TLALETSI
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Appearance:
For
the State: Ms Louw
Instructed
by: Director of Public Prosecutions
For
the Accused: Mr Cloete
Instructed
by: Kimberley Justice Centre