About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2006
>>
[2006] ZANCHC 48
|
|
S v Soldaat (K/S 27/06) [2006] ZANCHC 48 (6 September 2006)
Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case No: K/S 27/06
Heard: 28/08/2006
Delivered: 06/09/2006
THE
STATE
versus
FLIP
SOLDAAT
JUDGMENT
MOKGOHLOA
AJ:
INTRODUCTION
The
accused is charged with two counts of murder in that on the 25
December 2005 and at Saaiplaas he killed Godfrey Moos and Alfred
Lewis Moos by stabbing them with a knife. On 26 June 2006 he pleaded
guilty on both counts and was convicted as charged. The accused
is
legally represented.
In
considering sentence the Court must take into account the personal
factors of the accused, the seriousness of the crime and the
interest of the society. In this regard see
S
v Zinn 1
969(2)
SA 537 A at 540G.
A Court should
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.
PERSONAL
CIRCUMSTANCES
Your legal
representative has put the following before me:
You
are 21 years old, unmarried. You have a child. You were employed
at the time of the commission of the offence. You were
earning
R950.00 per month. Although it is not the first time you come
against the law but you should be treated as a first offender
as
your previous conviction did not involve violence.
THE OFFENCE
In
your statement handed in during the proceedings by your legal
representative Adv Cloete, you pleaded guilty. You admitted that
on
the 25 December 2005 you stabbed both the deceaseds once with a knife
and that they both died as a result of your action. You
stated that
you were under the influence of alcohol but could appreciate what you
were doing. You were not attacked before and not
provoked in any way
and therefore did not act in self defence. You admitted also that
you knew what you were doing was wrong.
Section
51(2)
of the
Criminal Law Amendment Act 105 of 1997
provides that
where an accused is convicted of murder which falls under
Part II
of
Schedule 2 the Court is obliged to impose a sentence of imprisonment
of a period of not less than 15 years if the accused is
a first
offender unless compelling and substantial circumstances are found
to exist. Such circumstances must be entered on the
record of the
proceedings and the Court thereupon imposes a lesser sentence. See
S v Malgas
2001(1) SACR 469 (SCA).
The
deceaseds
were brothers aged 26 and 24 years respectively. They were staying
with their mother and siblings and were assisting their mother
financially. One of the deceased had a child who was five months
old at the time of the incident.
COMPELLING AND
SUBSTANTIAL CIRCUMSTANCES
Advocate Cloete
has argued that the following factors should rank as compelling and
substantial factors that:
You are 21 years
old and are a first offender.
You had consumed
liquor, though it did not affect your ability to distinguish
between right and wrong and act in accordance with
such
appreciation. However, the liquor affected your judgment.
You pleaded
guilty which shows remorse on your part. You have indicated that
you are sorry about what happened and regret the
incident.
You
did not plan these murders and that you acted with
dolus
eventualis
.
You are not a
sophisticated person as you attended school up to standard 4 and
therefore your moral blameworthiness should not
be judged as that
of a reasonable sophisticated man.
He further argued
that both murders were committed at the same place and same time and
that the Court should consider sentences
to run concurrently.
The
offence itself is a very serious one that is why there is a special
legislation which prescribes minimum sentences. Lives of
two people
have been lost. No amount of sentence will bring back those lives.
Innocent people are killed
darily
for no apparent reason. The community is also tired of such
offences and are looking at he Courts to deal severely with such
offenders.
I have taken into
account the submissions made on your behalf of which the State
accept. I am of the view that there exist substantial
and
compelling circumstances which justify me to deviate from the
prescribed sentence. These are: your relative youth, your clean
record, you pleaded guilty and therefore showed remorse and further
that when the offence was committed you had consumed liquor.
It
must be accepted that liquor has an effect of impairing oneâs
judgment.
After careful
consideration I have come to the conclusion that a proper sentence
in this matter would be a lengthy term of imprisonment
and that part
of sentence in Count 2 run concurrently with sentence in Count 1.
In the exercise of my discretion I will also take
into account the
bench mark laid down by the legislature for this type of offence.
In my view this sentence will be commensurate
with the seriousness
of the offences. I will also to your advantage take into account
that you have already spent over 8 months
in custody awaiting the
finalization of your trial.
SENTENCE
Accordingly you
are sentenced to:
In respect of
Count 1 ________ years imprisonment.
In respect of
Count 2 ________ years imprisonment.
______ years
imprisonment in Count 2 is ordered to run concurrently with the
sentence in Count1.
In effect you
will
______________
FE MOKGOHLOA
ACTING
JUDGE
NORHTERN CAPE
DIVISION
On
behalf of the State : Advocate P Olivier
Instructed
by : Director of Public Prosecution Kimberley
On
behalf of the Accused : Advocate J Cloete
Instructed
by : Justice Centre Kimberley