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[2006] ZAWCHC 87
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S v Naphakade (SS260/2005) [2006] ZAWCHC 87 (20 April 2006)
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT CAPE TOWN)
CASE
NUMBER
: SS260/2005
DATE
:
20 APRIL
2006
In the
matter between:
THE
STATE
and
ZUKO
NAPHAKADE
.......................................................................................
ACCUSED
SENTENCE
ZONDI A
J
Mr
Naphakade, by sentencing you I have to take in into account your
personal circumstances, the nature of the offence and the interest
of
the community.
As far as
your personal circumstances are concerned, it was indicated that you
are a first offender, that you were born in Oktober
1981 and you are
not married, but you have two daughters who are three and one year’s
respectfully. At the time of your arrest,
you were staying with your
parents who were looking after you, as you were unemployed. At school
you past standerd ten and since
you left school you have done some
courses on security management, first aid and English.
This
briefly summarizes your personal circumstances.
As far as
the nature of the offence is concerned, is there no doubt about the
seriousness thereof. You have be6n convicted of murder,
attempted
murder and unlawful: possession of firearms and ammunition. There was
. evidence that these offenses took place in the
cause of robbery and
a firearm was used in committing these atrocipus offences.: Murder is
a serious offence as it involve the
lost of human-life which cannot
be replaced. It seems to me that murder has become prevalent in these
days and in moist cases illegal
firearms is used in committing it..
It is for these reasons that the legislator has seen it fit to set a
minimum sentence in order
to deal squarely with serious offences such
as. murder. This legislation prescribes minimum sentences for these
offences, in other
word the minimum sentence legislations sets out a
minimum sentence to be imposed on a persone convicted of murder. The
charges
you are facing are subjected to Section 51 of Act 105 of 1997
(The Minimum Sentence Legislation). I shall return to this aspect
later and I will deal more thoroughly with it.
Mr April,
who gave evidence in this matter, testified on how you shot him and
the deceased after instructing them to Me on the ground.
They covered
their faces while other, who was with you, removed various goods from
the owner of the house, who he had visited.
You shot them at a close
range and you shot the deceased in the head. The postmortem relating
to the injuries sustained by the
deceased was handed in as EXHIBIT D
and upon examination the deceased was found to have four gunshot
wounds to the head. The gunshot:
wounds trekked through the brain. Mr
April was also shot four times and sustained bodily injuries.
Now
as far as the interest of the community is concerned, it is correct
that the community needs to be protected against offences
of this
nature and they are looking up to courts for protection. The only way
the court can do so is by imposing appropriate sentences.
It is the
duty of this court to protect the community by imposing appropriate
sentences and to send out the message that offences
of this nature
would not be tolerated.
It
was argued by ms Verrier, on your behalf, that the minimum sentence
legislation is not applicable in this matter, because the
murder was
not planned or premeditated. The prescribed minimum sentence for
murder, when it is planned or premeditated, is life
imprisonment- Now
it is clear from the evidence of mr April that the deceased was shot
at a very close range. When you shot mr
April and the deceased you
were over them while they were sitting. The deceased and mr April had
covered their faces. The decease
had covered his face with his hands,
while mr April had pulled his shirt over his face. It is clear to me
that you killed the deceased
in execution style; you did not show any
mercy to him. The deceased was defenseless and it seems to me that
you killed him in order
to avoid detection as possible prosecution.
It is also clear from the evidence of mr April that even if the
murder of the deceased
was not pre-planned before you went into
Thulani’s house, that is the house which mr April visited.
Planning must have taken
place either during the robbery or
immediately after the robbery. Before you left the house, you shot
the deceased and the witness,
:
thereafter you closed the door and left. In these circumstances the
murder charge is subject to the minimum sentence legislation.
The Act
prescribes the life imprisonment sentence for murder, which was
either planned or premeditated, or when the victim was
a person who
was likely to give material evidence with reference to any offence
referred to in Schedule 1 of the
Criminal Procedure Act of 1977
, that
is the criminal proceedings in any court. I just want to make it
clear that the Act prescribed the minimum sentence, but
the minimum
sentence is not a mandatory one. This will be a case where there are
substantial and compelling circumstances and which
would justify the
imposition of a lesser sentence, than the sentence prescribed by
legislation.
Now the
question is whether there are any substantial and compelling
circumstances in this matter that would justify me giving you
a
sentence less than the prescribed minimum sentence. I have fully
investigated this and unfortunately I could not find any substantial
and compelling circumstances in your favor. The only thing is that
you have been in prison since January 2004, other than that
there is
nothing to indicate why these offences were committed and whether
there was any need on your part to do so. There was
...(indistinct)
in the fact that your defense was an alibi, in other words you were
saying you had no knowledge of the allegations
against you. In other
words there is no indication that either alcohol or drug abuse was
involved in this matter. Or that the deceased
had done something to
provoke you - there is nothing.
In the
circumstances I have no alternative, but to sentence you to life
imprisonment for murder. Ten (10) years for attempted murder.
Count
four and five relating to unlawful possession of a firearm and
ammunition will be taken together for the purposes of sentence
and in
respect of counts four and five you are accordingly sentenced to five
(5) years imprisonment. It is further ordered that
sentences in
respect of count two, that is attempted murder, four and five, that
is unlawful possession of a firearm and ammunition,
will run
concurrently with the life imprisonment sentence in respect of count
one. And you are declared unfit to possess a firearm
license.
ZONDI,
AJ