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[2024] ZANCHC 47
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S v Mathebula (Sentence) (KS32/2023) [2024] ZANCHC 47 (19 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO:
KS32/2023
DATE HEARD:
15 – 19 APRIL 2024
In the matter between:
THE
STATE
and
MATHEBULA
,
RONALD
Accused
Coram:
Nxumalo, J
JUDGMENT:
SENTENCING
THE INDICTMENT AND
PLEA
:
[1]
The accused
in these proceedings is one Mr Ronald Mathebula, a 36-year-old male
and South African citizen, residing at 5[...] W[...]
P[...] Street,
Ritchie, in the District of Francis Baard. He is charged with
one count of murder, read with Section 51(2)
of Act 105 of 1997.
[1]
[2]
The State alleged that on or about 03 August 2023 and or at or near
5[...]
W[...] P[...] Street, Ritchie, the accused unlawfully and
intentionally killed one Robin Collin Boikanyo, an adult male person,
by stabbing him with a knife. The accused, who was legally
represented, pleaded guilty to the said charged.
SUMMARY
OF THE SUBSTANTIAL FACTS IN TERMS OF SECTION 144(3)(a) ACT 51 OF
1977
:
[3]
The charge proffered against the accused is predicated against the
following
facts, in sum: During the evening of 02 August 2023 the
accused, together with one Ms Sarah Smith; Ms Sanna Bitterbos; Tamson
Dole
and the deceased were all having drinks at one tavern called
Gorgor’s Place. On 03 August at 01h30, the accused, Sarah
Smith and Sanna Bitterbos went home. The deceased joined them.
[4]
Upon arrival at the aforesaid address, the deceased suggested that
more
beers be bought. Bitterbos went to bed, while the rest
went to buy beers at one place called “
Aunt Emily’s
Place
”. They consumed some of the said beers on their
way back home. Upon their arrival home they found the doors
locked
and knocked on the doors and windows. While the others
were knocking, the accused went elsewhere to buy some cigarettes.
While the accused was away, the deceased touched Sarah on her
elbow to inform her that he was going to check the window on
the
other side of the house. After a while, the accused joined
Sarah on the porch and they continued to knock on the window
together.
[5]
At some stage the accused suddenly grabbed the deceased on his chest,
swore at him and started fighting him. Sarah sought to
intervene, to no avail. Whilst the fight ensued, the deceased
fell from the porch and landed on his back. The accused, who
was armed with a knife, proceeded to stab the deceased repeatedly.
The deceased sustained 19 cuts and/or incised wounds and
succumbed thereto. The accused thereafter reported the incident
at the Modder Rivier Police Station, where he was immediately
arrested.
[6]
A post-mortem examination was conducted on the body of the deceased
and it was
found that the cause of death was a stab wound in the
chest. It is against this backdrop that the State alleged that
murder
of the deceased by the accused was planned and/or
premeditated.
ACCUSED’S
WRITTEN STATEMENT AND ADMISSIONS IN TERMS OF SECTIONS 112(2) AND 220
OF THE ACT
:
[7]
A written statement within the contemplation of
Section 112(2) of the
CRIMINAL PROCEDURE
ACT (“
CPA”
)
,
on behalf of the accused was handed up; admitted and marked Exhibit
A, in these proceedings. In terms of the said statement
and as
alluded above; the accused: freely, voluntarily and upon legal
advice, pleaded guilty to the said offence whilst in his
sound and
sober senses. The State, for its own part, accept the facts as
stated by the accused.
[8]
The said statement is quoted hereunder in
toto
;
to
wit
:
“
1
I the undersigned
Ronal Mathebula the accused in the matter …do hereby plead
guilty to the charge against that is one of
Murder read with
provisions of Section 51(2) CLAA.
2.
I was not forced or
influenced by anyone to plead guilty and I do so freely and
voluntarily in my sound and sober senses.
3.
The facts I plead
guilty to are as follow that on Thursday the 02
nd
August
of 2023 I was at Gori tavern from the morning until earlier hours of
the 03
rd
August 2023. We were busy consuming alcohol black
label beers and some gin shots, it was my girlfriend Jessica, her
sister Sanna
and Temmie. We had finished the whole case of the black
label beers and bought some more of the black label beers I lost
count
how many beers were consumed and the number of shots.
3.1
Whiles at the tavern
the deceased joined us as we were about to leave, I did not know him
prior to that encounter. He was introduced
by my girlfriend as her
friend someone they normally hang out with as I was not from Richie
but only visiting my girlfriend. I
had no problem with that as I
continue buying more beers. We left the tavern; the deceased also tag
(sic) along as we were going
to my girlfriend’s place. Upon
arrival at my girlfriend’s place Sanna and Tammie decided to go
and sleep, Jessica,
myself and the deceased went to buy more beers.
3.2
When we returned from
buying more beers, we found the house locked. I left the deceased and
Jessica knocking on the door and went
to a nearby house to buy
cigarettes. On my return I found Jessica my girlfriend sitting on the
deceased laps (sic) facing each
other. I asked them what was going on
the deceased responded by saying that Jessica was his girlfriend.
3.4
[2]
I lost it, I started
to hit the deceased with fists and he fought back we wrestled until
we fell down. When I was on top of the
deceased, I took out a kitchen
knife from my pocket which I had been using to cut the lemons we were
using when mixing gin shots
and use it to stab the deceased a number
of times on his body I was stabbing randomly.
3.5
I stood up when the
realization hit me of what I had done and I ran to the police station
to report that I had stab (sic) a person.
That is how I was arrested.
I knew that stabbing a person with a knife a number of times on his
body, he will sustain serious injuries
which might cause his death.
It did not matter to me at that moment as I was consumed by that fit
of anger towards the deceased.
4.4
[3]
I make the following
admissions in terms of Section 220 of Act 51 of 1977
Ø
I admit the identity of the deceased to
be Robin Collins Boikanyo an adult male 29 years old as identified by
Irene Jacqueline Davis;
Ø
I admit the postmortem report marked
KDR300/23 refers to the postmortem of Robin Collins Boikanyo as
completed by Doctor Lemaine
Fouche indicating the cause of death to
be stab chest;
Ø
I further admit the conveyancing statement of the body of
the deceased that his body sustains no further injuries from the time
his body was removed until the post-mortem examination was conducted
by Dr Fouche;
Ø
I further admit the photo album as
compiled by Warrant Officer NP Xwazi as the true depiction of the
crime scene as well as the
body of the deceased when it was found,
such can be handed in as exhibit in Court;
5.
I knew that my actions
of stabbing the deceased as he was not posing any eminent danger to
my life were unlawful and that they caused
of his death and further
that I have no defence to the charge of Murder against me.
THUS DONE AND SIGNED
AT KIMBERLEY ON THIS 15
th
DAY OF APRIL 2024
______________________
__________________________
CLIENT’S
SIGNATURE
LEGAL REPRESENTATIVE”
[9]
Section 112 (2) of the CPA, expressly empowers this Court to convict
and
sentence an accused who or his legal advisor has handed up a
written statement into Court, in which the accused sets out the facts
which he admits and on which he has pleaded guilty, on the strength
of such statement; if the Court is satisfied that the accused
is
guilty of the offence to which he has pleaded guilty.
[10]
This Court having satisfied itself on the strength of the said
statement that
the accused is guilty of the offence to which he has
pleaded guilty; on 15 April 2024, found the accused guilty of murder,
read
with Section 51(2) of Act 105 of 1997.
POST-MORTEM
EXAMINATION REPORT IN TERMS OF SECTION 212(4)(a) OF THE CPA:
[4]
[11]
This Report, which is unsworn but fortunately common cause, is a
result of
an examination of the body of the deceased conducted by one
Dr Lemaine Fouche, a Principal Pathologist in the employ of the
Department
of Health, Northern Cape. The examination was conducted on
03 August 2023, being the day the body was found. According to
the said report, which has been admitted and marked Exhibit B in
these proceedings, the external appearance and condition
of the body
and limbs of the deceased were,
inter alia
, to
wit
:
“
4. External
appearance of the body and condition of the limbs:
4.2
Two incised wounds, 1 cm each on the front of the right upper
chest.
4.3
A point incised wound on the lateral aspect of the right
chest.
4.3
An incised wound, 1,5 cm long on the level of the right nipple
and 2cm right of the midline of the chest.
4.4
5 point incised wounds over the upper abdomen.
4.5
A cut wound, 3 cm long on the front of the right upper leg.
4.6
A point incised wound on the front of the left shoulder
4.7
An incised wound, 1,5 cm long on the medial aspect of the left
nipple and 2 cm left of the midline of the chest.
4.8
An incised wound, 1cm long on the lateral aspect of the left
chest.
4.9
An incised wound, 1 cm long over the left flank.
4.10
A point incised wound, on the left side of the back.
4.11
An incised wound, 1 cm long, 5cm left of the spinal column.
4.12
A superficial cut wound on the back of the left upper arm.
4.13
An incised wound, 1 cm long on the lateral aspect of the left
side of the back, just above the left buttock.
4.14
An incised wound, 1,5cm 2 cm left of the spinal column above
the left buttock.
4.15
An incised wound, 1,5 cm just right of the spinal column.
4.16
An incised wound, 1,5cm long 2cm right of the spinal column.
4.17
10 incised wound, 1cm long on the back of the right upper and
lower arm.
4.18
A superficial incised wound, 1,5 cm long on the back of the
right buttock.
4.19
A superficial incised wound, 2 cm long on the back of the
right upper leg.”
[12]
Even though the learned Doctor ultimately concluded that the cause of
the death of the
deceased is a stab in the chest, it is significant
here to highlight the chief post- mortem findings made on the
deceased’s
body; if only to contextualise the brutality of the
injuries inflicted by the accused on the deceased. The Doctor’s
findings are,
inter alia
, to
wit
:
“…
multiple
stab wounds to the front and back of the chest. There are incised
wounds through the 2
nd
and 7
th
intercostal spaces right posterior. There is an incised wound through
the 5
th
rib left anterior. There is an
incised wound through the 8
th
intercostal
space left lateral. There is blood in both thoracic cavities. There
is an incised wound through the right ventricle
of the heart with
blood in the pericardial sac. The brain is macroscopically swollen
with flattering of the gyri. There are bilateral
tonsillar
herniations noted. Both lungs are grey in colour. The right lung has
a collapsed appearance. Both kidneys are pale in
colour. Both kidneys
are swollen on cut Section.”
[13]
The crime scene was officially photographed by SAPS and attached to
the sworn statement
of its official photographer and draughtsman,
dated 29 August 2023. The scene was photographed on 03 August
2023 at 06h05,
and the photographs thereof have been admitted in
these proceedings and marked Exhibit “C".
BRIEF OVERVIEW OF
THE VICTIM IMPACT REPORT
:
[14]
This report, dated 15 April 2024, was admitted in these proceedings
and marked Exhibit
“E”. It was compiled by one Ms
Nozuko Vika, a registered Gender Based Violence Social Worker
currently on internship
with the Department of Social Development.
The report pertains to the impact the demise of the deceased
has on his 12-year-old
daughter and three siblings, all of whom are
secondary victim of the convict’s crime.
[15]
The deceased is one of five siblings who all grew up together in a
closely knit family
brought up by both parents. Only three of
these siblings remain alive; to
wit
: Ms Irene Davis; Ms Ellen
Boikanyo and Mr Leonard Boikanyo. The deceased was predeceased
by their third born sister. The
deceased’s 12-year-old
daughter, who is currently living with her mother, did not take the
death of her father well, even
though the deceased was not very close
to her. It can however not be disputed that his daughter is
negatively affected by
his death.
[16]
Ms Davis described the feeling of losing her brother in the manner
and circumstances
described above as painful, unexpected, gruesome
and heart breaking. Ms Boikanyo, who was very close to her
brother, stated
that it took her time to come to terms with his
passing away. Mr Boikanyo, who had a good relationship with the
deceased,
said that he was hurt to find his brother in such a
horrific state at someone else’s house. That the deceased
was a
very good and protective uncle to his children with whom the
deceased had a good relationship with. His children continue
to
miss their uncle. His wish is for justice to take its course
because they have been robbed of their brother and his niece
is left
without a father.
[17]
In sum, the deceased’s next-of-kin are still grieving the
demise of the deceased
and are still horrified by the facts and
circumstances under which they have lost him.
PERSONAL
CIRCUMSTANCES OF THE CONVICT
:
[18]
The following is common cause with regard to the personal
circumstances of the convict;
to
wit
: He is a 37-year-old
single, unemployed, childless and a first time offender. He
reported himself immediately to the Police
and handed himself over
after committing the offence and pleaded guilty, which evinces some
remorse on his part. He took
full responsibility for the
offence and took the Court into his confidence without any waste of
time.
[19]
In aggravation of sentence, the State
vide
Ms L Pillay
in sum,
inter alia,
not only highlighted that the sum total of
the wounds inflicted by the accused on the deceased are 19, but that
same evince the
force and violence used by the accused to murder the
deceased. It was submitted for the State that regard being had
to the
facts and circumstances of this case, there are no compelling
circumstances warranting a departure from the statutory minimum
sentence.
In the premise, the State enjoined this Court to
sentence the convict to 15 years’ imprisonment, which is the
statutory
minimum sentence.
[20]
For
the convict,
vide
Mr
Biyela
,
it was submitted,
inter
alia
as
follows, in mitigation of sentence: T
hat
regard being had to the personal circumstances of the accused; his
age; the peculiar facts of this case looked at cumulatively,
do
amount to substantial and compelling circumstances and as such the
Court should depart from imposing the minimum sentence. That
our Courts have consistently held that where death occurs because of
jealousy or anger as between lovers, same constitutes a crime
of
passion due to the emotive conditions in which the guilty party find
himself/herself. That depending on the facts of each
case, such
conflict situation gives rise to a mitigating factor-
S
v Meyer
1981(3)
SA 11 (A) at 16G.
[21]
In
Mnisi
,
the appellant had pleaded guilty after he shot and killed his wife’s
lover, when he found him embracing with his wife. This
is after there
were a number of attempts to resolve the marital challenges between
the accused and his wife over her adulterous
relationship with the
deceased. The accused claimed that he acted with diminished
responsibility. The court accepted that there
was a reasonable
possibility that the appellant was not completely rational when he
shot the deceased and his actions were the
product of emotional
stress brought about by the conduct of the deceased and the
appellant’s wife. The sentence imposed by
the magistrate was
set aside and replaced with a sentence of 5 years’
imprisonment.
[5]
[22]
Whilst conceding that
S
v Mnisi
is
not
pari
materia in casu
,
Mr
Biyela
nevertheless
submitted that the trigger in both cases seems to be the same. That
it so to the extent that the accused was overwhelmed
by anger and did
not think things through and acted irrationally. That the convict
must have felt humiliated and betrayed by the
deceased and Jessica
especially when the deceased said that Jessica was his girlfriend and
more so when one takes into account
that the convict had been buying
liquor for them.
[23]
That though the facts
in
casu
may
not be similar to the abovementioned case, this Court should
nevertheless consider as mitigating factor the emotionally charged
condition the convict found himself under at time of the commission
of the crime. In the premise, this Court was urged to
refrain
from imposing the statutory minimum sentence and instead impose
lesser sentence, part of which should be conditionally
suspended.
[24]
This Court however found
Mnisi
distinguishable;
inter-alia
to
wit
:
the couple was married; the wife was involved in a protracted
extramarital affair with the deceased; the deceased was murdered
after numerous attempts by the appellant and family to end the
extramarital affair; when the appellant found his wife in the embrace
of the deceased all the hurt and pain he suffered throughout the
adulterous affair flooded his mind and provoked him to the extent
that he momentarily lost control of his inhibitions and he shot the
deceased; the appellant had young children and a grandmother
dependent on him for support; and he was remorseful. Needless to
state, none of the said factors are extant in
casu
.
[25]
The
following was also submitted for the convict, without dispute on the
part of the State; to
wit:
He
only went as far as Grade 12 with his schooling. He was
gainfully employed prior to his arrest at Romans Pizza as a chef
earning R4 800.00 per month. He gave a detailed account of
what caused him to commit the offence. He did not try
to come
up with excuses for his actions, he co-operated with the Police, and
handed over the knife which he used to stab the deceased.
There
are no indications that he has a propensity to commit crimes, he had
been living a normal life until the unfortunate
night of this
incident. He is thus deserving of a second chance. There
is no evidence to suggest that he is a violent
person, as he has no
history of violence. He was overwhelmed by the anger which
resulted in him committing this offence.
[6]
BRIEF EXPOSITION OF
THE LAW
:
[26]
Murder is a serious offence and a veritable
pandemic in this country. It is indeed a crime which leaves
irreparable damage,
since loved ones are lost and families are ripped
apart. Whilst no sentence can bring back the victims of these
offences
to life, it is imperative for our communities to be
protected from heinous offences such as the one
Mr
Mathebula
has been convicted of.
[27]
It is so that mitigating factors must be
juxtaposed against the aggravating circumstances of the relevant
offence and the expectations
of society. The interests of society are
not best served by too harsh a sentence; but equally so they are not
properly served by
one that is too lenient. One must always strive
for a proper balance. In doing so due regard must be had to the
objects of punishment.
The fact that the death of the deceased
ensued from multiple stab wounds on his body is a factor this Court
considers as aggravating.
[28]
This Court also considered the following aggravating factors: There
was no evidence
led that at all material times hereto, the deceased
attacked the convict or that he was armed. The fact that the
convict
was intoxicated, in the mind of this Court is a neutral
factor. It is so because there is no evidence before this Court
that,
at all material times hereto, the convict was senselessly
intoxicated. The assault on the deceased can however not be
said
to have been planned or premeditated.
[29]
It is trite
in our law that when it comes to sentencing, the Court has to take
into account the triad consisting of the crime, the
offence, and
interest of society, as expounded in
S
v Zinn
1969
(2) SA 537
(A) at 540G-H.
The
corollary of this is that punishment should not only fit the criminal
as well the crime, but must be fair to society, whilst
being blended
with a measure of mercy according to the facts and circumstances of
each case.
[7]
[30]
In
the
S
v Gardener and Another
[8]
it was aptly stated as follows that:
“
True
justice can only be meted by one who is properly informed and
objective. Members of the community, no matter how closely involved
with the crime, the victim or the criminal, will never possesses
either sufficient comprehension of or insight into what is relevant
or the objectivity to analyse and reconcile them, as fair sentencing
requires. That is why public or private indignation can
be
no more than one factor in the equation which adds up to a proper
sentence and why a Court, in loco parentis for society, is
responsible for working out the answer.”
[31]
This Court is of the well-considered view that an
appropriate sentence in the circumstances should be one which
reflects the interests
of society, which viewed the conduct of the
convict in a very serious light and the need for deterrent
sentences. In
S v WV
2013
(1) SACR 204
(GNP) that Court held the following, which is very
apposite in these sentencing proceedings:
“
It
is the kind of sentence which we impose that will drive the ordinary
members of our society either to have confidence or to lose
confidence in the judicial system.
The
sentences that our Courts impose when offences of this nature are
committed should strive to ensure that people are not driven
to take
the law into their hands but rather to scare away would be
offenders.”
[9]
[32]
Having
admitted murdering the deceased, it is trite that the convict ought
to have shown that substantial and compelling circumstances
existed
which justified the imposition of a lesser sentence in terms of
Section 51(3)(a) of the Act. The approach of this
Court is that
where a prescribed sentence is imposed, the pertinent question of
course is whether the facts and circumstances of
the convict are
indeed substantial and compelling or not.
[10]
[33]
In
S v Vilakazi
2012 (6) SA (SCA) at paragraph 58 of its judgment, the penultimate
Court said the following:
“
In
cases of serious crime the personal circumstances of the offender by
themselves will necessarily recede into the background.
Once it becomes clear that the crime is deserving of a substantial
period of imprisonment the questions whether the accused
is married
or single, whether he has two children or three children, whether or
not he is in employment are in
themselves
largely immaterial to what that period should be.”
[11]
[34]
That Court went on to lament that: “
Those
seem to be the kind of flimsy grounds that
Malgas
said should be avoided.”
[35]
In
S
v Malgas
,
the following was said:
[12]
“…
those
circumstances had to be substantial and compelling. Whatever nuances
of meaning may lurk in those words, their central thrust
seems
obvious.
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances…”
[13]
[36]
The fact remains that
Mr Mathebula
has been convicted of a
very gruesome murder, falling under Part II of Schedule 2 of the CPA.
The mere fact that he has admitted
same does not reduce the
gravity and heinousness of the crime. Though he is a first
offender of this type of crime, it is
so that the minimum sentence
applicable in this matter is a period not less than 15 years’
imprisonment in terms of
Section 51(2)(a)
of the
CRIMINAL LAW
AMENDMENT ACT
105 of 1997
.
[37]
This matter calls for a sentence cognisant of the convict’s
personal circumstances,
but which takes account of the seriousness of
the offence and the need for appropriate severity and deterrence.
This latter element
is at the core of the community interest in how
courts should deal with violent crime.
This Court
has taken the personal circumstances of the accused into full
consideration,
vis-à-vis
the seriousness of the crime.
In the circumstances, the
convict’s personal circumstances are outweighed by society’s
need for a retributive and deterrent
sentence.
[38]
Regard being had to the seriousness of this crime,
this Court is of the well-considered opinion that the personal
circumstances
of the convict by themselves necessarily recede into
the background. They seem to be the kind of flimsy grounds that
Malgas
said should be avoided. They are because it is clear that the
crime is deserving of a substantial period of imprisonment.
[39]
This Court is also of the well-considered opinion that regard being
had to the facts
and circumstances of this case, there are no
substantial and compelling circumstances prevailing for it to depart
from the minimum
sentence as contemplated in Section 51 (2)(a) of the
CRIMINAL AMENDMENT LAW ACT
105 of 1997.
[40]
It is
critical to send out a clear message to society at large that resort
to violence cannot be tolerated. The courts can convey
that message
effectively only in the sentences that they impose in cases of this
nature. The possibility of rehabilitation of the
convict as a first
offender and the improbability of a repeat offence, strenuously
argued on his behalf, certainly do not mean
that a short term of
imprisonment or correctional supervision are the only appropriate
sentences even when other relevant factors
indicate a substantial
term of imprisonment.
[14]
[41]
Just as the interests of society are not properly served by too harsh
a sentence,
neither are they served by one that is too lenient such
as the one proposed for the convict, which in this Court’s
view,
fails to adequately reflect the gravity of the offence in
question.
[42]
In the premise, the convict is sentenced as
follows:
A)
ON THE CHARGE OF MURDER, READ WITH SECTION 51 (2) OF ACT 105
OF 1997, THE CONVICT IS SENTENCED TO 16 (SIXTEEN) YEARS IMPRISONMENT.
B)
THE CONVICT IS HEREBY DECLARED UNFIT TO POSSESS A FIREARM IN
TERMS OF
SECTION 103(1)
OF THE
FIREARMS CONTROL ACT 60 OF 2000
.
JUDGE APS NXUMALO
HIGH COURT OF SOUTH
AFRICA
NORTHERN CAPE DIVISION
KIMBERLEY
Edited:
YES
/NO
Revised:
YES
/NO
Checked:
YES
/NO
Date:
19 April 2024
For
The State:
ADV L PILLAY
On
instruction of
:
Department of Public Prosecutions
For
the Accused:
MR K BIYELA
On
instruction of
:
Legal Aid South Africa, Kimberley
[1]
The
Criminal Law Amendment Act.
[2
]
The
is obviously wrong.
[3]
The
numbering is obviously wrong.
[4]
Criminal
Procedure Act 51 of 1977
.
[5]
2009
(2) SACR 227 (SCA).
[6]
See
Exhibit D.
[7]
S
v Rabie
1975(4)
SA 855 (A).
[8]
2011(1)
SACR 570 (SCA).
[9]
Emphasis
supplied.
[10]
S v
PB
2013 (2) SACR 533(SCA)
at 539F-G.
[11]
Emphasis
supplied.
[12]
2001(1) SACR 496(SCA) at para 25.
[13]
Emphasis supplied.
[14]
S
v Khumalo
[1984] ZASCA 30
;
1984
(3) SA 327
(A) at 333F.