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[2003] ZAWCHC 95
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S v Mpandle (SS56/2003) [2003] ZAWCHC 95 (14 April 2003)
IN
THE
HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)'
CASE
NO
:
SS56/2003
DATE
:
14-4-2003
In
the matter of:
THE
STATE
versus
DANISO
DANIEL MPANDLE
SENTENCE
DLODLO,
AJ
:
In passing sentence the Court must consider the accused's personal
circumstances, the offences you have been found guilty of and
the
interests of the community.
You
are 32 years of age. You have passed Standard 6. You are not married
but you are the father of two sons, aged 13 and six years
respectively. You were employed by the deceased for a period of two
years before the incident. Your income was the sum of R300
per week
from the employment you had. When the incident took place you had
been relieved of your duties by the deceased. Your
son Bongani was
staying with the deceased. The latter cared for your son even after
you had been fired from work. In your own evidence
your son Bongani
occasionally stayed with the deceased. You testified and told the
Court that you regret what you did to the deceased
and that you spent
sleepless nights as a result of these offences of which you have been
found guilty. Only one previous conviction
has been proved against
you, namely theft, which you committed in the district of Queenstown
in 1990 and in terms of section 294(1
)A of Act 51 of 1977, the
magistrate ordered that you be given corporal punishment.
Mr
Mpandle, you are guilty of very serious crimes indeed. You knew the
deceased so well that he was like a father to you. In your
own
evidence, the deceased is that person who found you in the midst of
the other people seated on the corner of the street looking
for
employment opportunities. You were presumably.hungry, as it follows
you would have had no money. You were, therefore, not in
a position
to buy food for yourself. Obviously you were not in a position to
provide for your son Bongani. In your evidence Mr
Mpandle, the
deceased chose you from the group and he employed you. He enabled you
to earn an income of R300 per week for the period
of two years. In
addition, the deceased out of his good heart, took your son and cared
for him. You told the Court yourself how
your son was attached to the
deceased.
When,
according to what the Court gathered from your evidence, you were no
longer performing your duties well for your employer
(the deceased),
he fired you. He.did what any reasonable employer would do in the
circumstances. Despite the fact that you had
been sacked from your
work, the deceased did not take a decision to part ways with your
son, he cared for the boy. The two were
clearly attached to each
other. You yourself telephoned the deceased, informing him that you
wanted to come and visit your son
Bongani. All was well when you
arrived and you told the Court that the deceased even put a game on
for you on the computer. The
deceased was working and was in front of
another computer at the time.
You
suddenly started to ask for your money from the deceased.
The
deceased was clearly not wrong in saying that he was supporting your
son. It is very clear that the deceased did not in the
least expect
trouble from you. Mr Mpandle, you proceeded to the kitchen of the
deceased which was obviously well known to you.
You went there to
fetch the knife. You used the knife against an apparently old and
defenceless person. In your own evidence you
stabbed him several
wounds on the chest whilst he was still seated on a chair in front of
his computer. You stabbed him repeatedly
such that you yourself
cannot say how many times you stabbed him. When the weapon broke, you
again proceeded into the kitchen to
fetch another knife. You used a
second knife against the -deceased. You inflicted numerous injuries
to the deceased. According
to the pathologist who gave evidence for
the State, there were 18 stab wounds all on the most delicate parts
of the human body,
namely the chest and neck. Some wounds pierced the
heart. As far as the injuries are concerned, Exhibits "B'
1
and "E" speak for themselves. These were amplified for the
Court by Sarka Anna Siroka, the pathologist who testified
for the
State in aggravation of sentence.
Mr
Mpandle, you stabbed the deceased so much that you only stopped when,
in your own words, he was "motionless". You took
the
motionless body of the deceased to the bathroom. Your explanation for
doing so is that you did not want Bongani, your son,
to see the
bloodstained, motionless body of the deceased. Without
hesitation I reject that explanation as lies. The purpose
why you
took this body to the bathroom is clear - you were engaged in the
concealment of a very serious crime you had finished
committing. Mr
Mpandle, you told the Court that you thereafter took clothing
belonging to your son Bongani. You took your son who
was asleep and
you loaded Bongani and his clothes into the Honda Ballade belonging
to the deceased. The very Honda Ballade the
deceased used in fetching
you from Milnerton. You helped yourself to the cash money of the
deceased. You stole the deceased's motor
vehicle; you used it to get
away from the scene of the crime.
Mr
Mpandle, you told the Court that before departing you locked the
apartment of the deceased and drove away with the keys. You
claimed
to have done that in order to prevent the possible theft of the
computers. You know yourself this is a lie that you were
protecting
the computers. You were preventing the discovery of the crime you had
committed. If you did not care about the stabbed
deceased, how on
earth do you expect the Court to believe you that you were concerned
at all whether or not the.computers were
stolen? Nobody could
possibly see the deceased who had been so seriously stabbed. Nobody
could therefore render any assistance
to the deceased, not even a
good Samaritan of the olden days could have been of help to this man.
You drove to your own place of
abode in the vehicle of the deceased.
You used the money you stole for your own personal benefit. You drove
around in the vehicle
as though nothing had happened.
When
you were caught by the police, you were with your girlfriend inside
the stolen vehicle. You did not tell the police that the
deceased is
locked inside the apartment. On being questioned on this, you merely
said that you were afraid that you would be arrested.
Surely you
could even have made an anonymous call about this. It is not true
that you were afraid. You were indeed a very brave
man. In fact, you
are dangerously brave. You could not have been afraid of anything,
let alone arrest. The deceased was viciously
attacked inside his own
apartment. He was brutally murdered. He was brutally murdered by a
person whom he perceived to be a friend.
That person is yourself Mr
Mpandle. When the deceased drove to Milnerton to fetch you upon
receiving your telephone calls that
you wanted to see Bongani, he did
not know that he was bringing death unto himself. He genuinely
believed he was fetching an old
friend.
The
interest of the community must always be one of the considerations
the Court takes into account in assessing the punishment
for any
crimes committed. The only mitigating factor I find in your favour is
that you are the first offender as far as the violent
crimes are
concerned. This must necessarily taken into consideration on count 1.
It has been argued on your behalf that you are
remorseful about what
you did. You testified and said you spend sleepless nights thinking
about the terrifying crime you committed
against a man you knew so
well. A man who was both your employer and your personal friend. A
man who appeared to have been a charming
custodian of your own son.
You need to be assured that in sentencing you I will give due regard
to your personal circumstances.
I will not lose sight of the already
mentioned fact that as to count 1 you are the first offender and that
you now seem remorseful
in your actions.
The
aggravating features of this case have already been set out
supra
and it would be pointless to over-burden the record with repetition.
I, however, hasten to mention that in crimes of violence,
factors
aggravating the crime, ordinarily include the degree and extent, of
violence used; the nature of any weapon, the brutality
and cruelty of
the attack; the nature and character of the victim, including whether
the victim was unarmed or helpless (in this
regard see
S
v Qamata
1997(1) SACR at 479 (E) particularly at 481 h; and
S
v Mquni
1994(1) SACR 579 at 583e). The attack on the victim was gruesome,
vicious, cruel and inhumane. The deceased was attacked and killed
in
cold blood. The deceased did not defend himself and from the look of
things he would: not as he was unaware that an attack was
imminent.
The deceased was helpless. Even when nature intervened by causing the
knife to break, you went for another knife. You
were intent to ensure
that your mission is completed, namely to bring about an end to the
life of the deceased.
When
one attempts to
:
balance the mitigating factors and the aggravating factors in this
matter, one readily finds that the aggravating factors totally
outweigh the mitigating factors. You brutally killed the deceased;
according to your explanation, because he insulted you and ordered
you out of his apartment. I have been unable to find any morally
acceptable motive for the crimes you committed. Deducing from
the
evidence and the facts in this case, you possibly killed the deceased
because he fired you and because you believed him to
be owing you
some money by virtue of your previous employment with him. You could
have easily gone to the Department of Labour
and declared a dispute
if you believed you have been unfairly dismissed from your
employment;
A
morally unacceptable motive may aggravate sentence (in this regard
see
S
v Tvers
1997(1) SACRat 261 (NC).) In
S
v Randall
1995(1) SACR at 559 (C) it was held to be aggravating when a crime is
committed for monetary reward. The very fact that you had
free access
to the deceased's apartment, you could freely telephone him and
arrange to visit him and your son, shows how much trust
the deceased
placed in you. You decided to abuse the position of trust in which
you were placed. The evidence of the investigating
officer in
aggravation of sentence does show that this kind of an offence,
namely murder, is somewhat prevalent. Whilst this is
a factor which
this Court should keep in mind in assessing punishment,, the Court
must be guided by
Rumpff,
JA
said in this regard in
S
v Seeqers
1970(2) SA at 506 (AD) particularly at 511C-F where the learned Judge
said the following:
"Prevalence
of a particular offence, as such, does not of course, necessarily
elevate the case. Whether or not the prevalence
of a particular
offence ought to be considered as an aggravating feature depends
entirely on the type of the offence committed
and the circumstances
in which the offence is committed."
Having
accepted that you are the first offender of violent offences and that
that fact must be taken as mitigatory, but the Court
would be failing
in its duty if it loses sight of the nature of the crime and the
callousness you showed in the commission of this
crime. Of course Mr
Mpandle, you are not a first offender in dishonest offences. As set
out above, you have previously been found.guilty
and sentenced. You
were very young and a reasonably long period of time has elapsed
between the commission of that offence and
the offence you stand
guilty of today. You are to be treated as the first offender even in
the theft charge.
I
do not regard your plea of guilty as an indication of remorse.
Investigations have already established that your son, Bongani,
stayed with the deceased and that ; you yourself previously worked
for the deceased. You were found by the police in the deceased's
motor yehicle. The knives used in the commission of the murder were
left by you at the scene of the crime. It appears to me that
you came
to realise that there was no chance to deny anything here. However,
as stated earlier on, I accept that you are remorseful
about what you
did. Those sleep less nights will be with you for the rest of your
life. You wilI remember the deceased and you
will always remember
that you were the cause of his demise. The memory of your actions in
this case will taunt you for the rest
of your life.
I
have attentively: listened to the legal representatives who presented
submissions in this matter. The Court is indeed indebted
to both of
you. Various alternatives and/or options opened to the Court to be
used in punishing you have been considered. You have
been found to be
an obvious candidate for imprisonment. Society deserves protection
against people like you. Short-tempered persons
are indeed extremely
dangerous because their actions cannot be anticipated and timeously
taken care of. You narrowly escape life
sentence in count 1. The
obvious factors that militate against the imposition of life sentence
is that you are only 32 years of
age, you are a first offender and
that you committed the offence at the spur of the moment. There was
no carefully worked out plan
to kill the deceased (see
S
v Selemane
1994{ 1) SACR at 481h-485b; and
S
v Boovsen
1993(1) SA (AD) at 702e-f;
S
v
Mokgalala
1993(1) SACR 704 (AD) at 708f;
S
v Mo.fokenq
1992(2) SACR at 710 (AD) at 715g-h).
You
must consider yourself very fortunate in that you clearly listened to
and accepted your counsel's advice to plead guilty to
theft as far as
count 2 is concerned. The original count 2 would have made you a
candidate for life imprisonment regardless of
the considerations I
have mentioned above as to count 1. The position is clearly, as
counsel for the State correctly submitted,
that the provisions of
section 51(1) (c)(ii) of Act 105 of 1997 would have been applicable
to you, the Minimum Sentences Act.
We
are in agreement, having presided over your case, having heard the
circumstances under which these offences were committed, and
having
had due regard to your personal circumstances and relevant factors,
that the following sentence is appropriate:
Count
1
- murder, you are sentenced to undergo imprisonment for the period of
20 years.
Count
2
- theft, you are to undergo imprisonment for the period of 10 years.
In
terms of section 280(2) of Act 51 of 1977, five years of the 10 years
in count 2 is to run concurrently with the sentence on
count 1.
DLODLO.
AJ