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[2024] ZAECELLC 24
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S v Methula - Sentence (CC49/2021) [2024] ZAECELLC 24 (2 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO. CC 49/2021
In the matter between:
THE STATE
and
NDUMISO
SICELO METHULA
Accused
SENTENCE
LAING J
[1]
The question of what sentence is appropriate after
a finding of guilt attracts no easy answer. Much has been written
about the subject.
If anything, then it would be useful merely to
commence the final phase of the trial, where the accused has been
found guilty of
the offence with which he has been charged, by
stating the obvious: an appropriate sentence depends substantially on
the facts
of each case. And each case is unique.
[2]
The
triad of factors enunciated in
S
v Zinn
remains
as relevant as ever for purposes of sentencing.
[1]
The court must consider the crime, the offender, and the interests of
society.
Over
time, the triad has been refined and expanded, but the essential
principles remain the same.
[3]
Terblanche summarises the basic principles of sentencing
as follows:
‘
(1)
The sentencing court has to impose an appropriate sentence, based on
all the circumstances
of the case. The sentence should not be too
light or too severe.
(2)
An appropriate sentence should reflect the severity of the crime,
while at the same
time giving full consideration to all the
mitigating and aggravating factors surrounding the person of the
offender; in other words,
the sentence should reflect the
blameworthiness
of the offender, or be in proportion to what
is deserved by the offender. These two factor, the crime and the
offender, are the
first two elements of the triad of
Zinn
.
(3)
An appropriate sentence should also have regard to or serve the
interests of society,
the third element of the
Zinn
triad. The
interests of society can refer to the protection society needs, or
the order or peace it may need, or the deterrence
of would-be
criminals, but it does not mean that public opinion be satisfied.
(4)
In the interests of society the purposes of sentencing are
deterrence, prevention
and rehabilitation, and also retribution.
(5)
Deterrence has been said to be the most important of the purposes of
punishment, although
this has been shown to be an oversimplification.
Deterrence has two components, namely deterring the offender from
re-offending
and deterring other would-be offenders.
(6)
Rehabilitation should be pursued as a purpose of punishment only if
the sentence actually
has the potential to achieve it. In the case of
very serious crime, where long terms of imprisonment are appropriate,
it is not
an important consideration.
(7)
Prevention as a separate purpose of punishment is rarely discussed
any longer.
(8)
Retribution, as an expression of society’s outrage at the
crime, has been held
not to be as important as it was in the past but
may nevertheless be of great importance, depending on the facts of
the case. Thus,
if the crime is viewed by society with abhorrence,
the sentence should also reflect this abhorrence. Retribution can
also be related
to the requirement that the punishment should fit the
crime, or that there should be a proportional relationship between
the punishment
and the crime.
(9)
Mercy is contained within a balanced and humane approach to
consideration of the appropriate
punishment. This appropriate
punishment is not reduced in order to provide for mercy. There is no
room for a vindictive and vengeful
attitude from the sentencing
officer.’
[2]
[4]
The above summary of
basic principles is drawn from the case law that has developed over
time. It has been relied upon in recent
cases; see, for example,
S
v Tsotetsi
.
[3]
[5]
The nature of the offence in the present matter is such
as to fall
within the ambit of the minimum sentencing provisions contained in
section 51(2) of the Criminal Law Amendment Act 51
of 1997 (‘CLAA’).
The court is required to sentence the accused, as a first offender,
to imprisonment for not less
than 15 years unless substantial and
compelling circumstances exist to justify the imposition of a lesser
sentence.
[6]
Both
counsel referred to the decision in
S
v Malgas
,
[4]
which
is recognized as a seminal case on the interpretation of the above
minimum sentencing provisions. In that regard, Marais JA
held as
follows:
‘
[t]hat
[the legislature] has refrained from giving such guidance as was done
in Minnesota from whence the concept of “substantial
and
compelling circumstances” was derived is significant. It
signals that it has deliberately and advisedly left it to the
courts
to decide in the final analysis whether the circumstances of any
particular case call for a departure from the prescribed
sentence. In
doing so, they are required to regard the prescribed sentences as
being
generally
appropriate
for
crimes of the kind specified and enjoined not to depart from them
unless they are satisfied that there is weighty justification
for
doing so.’
[5]
[7]
Various
commentators have referred to four key principle that the Supreme
Court of Appeal identified in
Malgas
:
(a) the prescribed sentences are the starting point; (b) if a
departure therefrom is called for then the court should not hesitate
to depart; (c) for purposes of determining whether a departure is
called for, a court must weigh up all considerations that are
traditionally relevant to sentencing; and (d) there must be a
departure when the prescribed sentence would be unjust.
[6]
[8]
In
S
v Vilakazi
,
[7]
to which counsel for the state referred, the Supreme Court of Appeal
confirmed the principles laid down in
Malgas
.
However, the court also emphasised the principle of proportionality;
a court is required to consider all the circumstances of
a case.
[8]
More will be said about this later.
[9]
The defence, in mitigation, led the evidence of
the accused himself. He testified that he is 45 years old and holds a
diploma in
information communication technology and a certificate in
financial management. He has been employed at various times in the
banking
and furniture retail sectors. He was retrenched in 2019. The
accused is also the director of a private company, currently not
generating
any income, and has an interest in a Gqeberha based
business, owned by a friend.
[10]
The accused went on to confirm that his two minor
children, A and M, who previously testified in the matter, are in the
care of
a maternal uncle and his wife, in Cape Town. He has had
infrequent contact with them since the commencement of these
proceedings.
He also has an 18-year-old daughter, who stays with a
maternal aunt and her grandmother in Gqeberha; she is presently
seeking employment.
The accused also explained that he is in close
contact with the older daughter of the deceased, Ms Mbawu, who
testified previously.
His parents live in Gqeberha and receive a
pension, to which he sometimes contributes.
[11]
Continuing his evidence in mitigation, the accused
emphasised that he had contact with the father of the deceased, Mr
Magengelele,
who forgave him for his actions and indicated that he
held nothing against him. The accused, concluding his testimony,
apologized
to the family, and asked for their forgiveness.
[12]
The defence led no further witnesses.
[13]
The state, in turn, submitted a letter on behalf
of the deceased’s family, in terms of which they stated that it
was difficult
to forgive the accused. This was because the death of
the deceased had divided the family. It had also led to resentment,
sadness,
and a sense of helplessness, resulting in the deteriorating
health of the deceased’s aunt and her father. Such feelings had
been intensified by a perception that the accused was not truly
remorseful about what he did. His children missed their mother,
they
were not performing well scholastically. Finally, the incident had
resulted in additional expenses for the family, including
the need to
pay for the security of the house at Ncera Village 3.
[14]
The state led no witnesses in aggravation.
[15]
At this point, it is necessary to decide whether
substantial and compelling circumstances exist to justify the
imposition of a lesser
sentence. To his advantage, the accused is a
first offender. He has a tertiary education and entrepreneurial
skills that could
contribute to the well-being of society. He has
described the destructive nature of his relationship with the
deceased and how
this affected his actions. He has accepted
responsibility for the consequences thereof and has expressed regret
and considerable
remorse about the incident. There are, however, no
dependents who would be severely prejudiced by his incarceration.
There was
no evidence of any underlying health concerns. Whether
viewed individually or collectively, the above factors do not
constitute
substantial and compelling circumstances.
[16]
Turning
to the crime itself, counsel for the state emphasised the seriousness
of the incident. In
S
v Ximiya
,
[9]
Makaula J had this to say:
‘
[The]
death of a human being through killing has devastating and dire
consequences for the family of the deceased person. It results
in
financial, emotional, traumatic and psychological problems on those
close and around the deceased. Its adverse effects can never
be
adequately described and the pain it causes cannot be measured in any
way. The pain and helplessness that one feels cannot be
verbalized.’
[10]
[17]
Murder is one of the oldest and strictest of
taboos. The preservation and integrity of civilization itself depend
on the prohibition
of such an act. It is in most, if not all,
communities a cardinal offence. Within a South African context,
murder removes, forever,
a person’s fundamental right to life.
There are few crimes as serious.
[18]
In the present matter, the deceased died in
horrible circumstances. She was dragged from the kitchen by the
father of her children,
armed with a knife. She was stabbed not once
but three times in the chest, with sufficient force to fracture her
ribs and collapse
her lung. She died, eventually, from a stab wound
to the heart. The forensic pathologist called by the state, Dr
Ntloko, testified
that the deceased would have experienced
considerable pain. These are, most clearly, aggravating factors in
relation to the determination
of sentence.
[19]
In
S
v Dyantyi
,
[11]
Petse ADJP (as he was then), remarked as follows:
‘…
when
it comes to punishment, courts must, after taking due cognisance of
all relevant factors, impose sentences that reflect the
revulsion of
society at the commission of such crimes. This is, however, not to
say that the courts should abdicate their sentencing
discretion and
allow themselves to be swayed by public opinion; it is, rather, more
to say public interest dictates that the concerns
of society and
society’s disapproval of certain crimes should receive some
recognition in the sentences that courts impose,
especially those
offences that strike at the very heart of the values and ethos of our
Constitution.’
[12]
[20]
In
Vilakazi
,
the Supreme Court of Appeal pointed out that, in cases of serious
crime, the personal circumstances of the offender must, by
themselves, necessarily recede into the background.
[13]
The state, in the present matter, has cited the decision in
S
v Rohde
to
argue that the crime of which the accused has been convicted is the
ultimate and most extreme form of gender-based violence.
[14]
The nature of the crime and the interests of society, contends the
state, call for the imposition of a life sentence, alternatively
twenty years’ imprisonment.
[21]
The
defence, in contrast, has referred to
S
v Scott-Crossley
to
point out that the accused must not be sacrificed on the altar of
deterrence.
[15]
The
circumstances of the case, including the blameworthiness of the
offender, must be considered.
[22]
In
Vilakazi
,
Nugent JA underscored the relevance of the principle of
proportionality.
[16]
The
punishment must be proportionate to what the offender deserves, no
less and no more; humans ought to be treated as ends in
themselves,
never merely as a means to an end. Whereas the mitigating factors
mentioned by the defence failed to serve as substantial
and
compelling circumstances in relation to the minimum sentencing
provisions, they cannot be ignored when applying the principle
of
proportionality.
[23]
In the present matter, two such factors stand out.
These will be discussed further, below.
[24]
The first factor is what was described in earlier
proceedings as the toxic nature of the relationship between the
accused and the
deceased. Although their relationship may have begun
positively, with mutual displays of love and affection towards each
other,
it deteriorated over time to a violent mix of suspicion and
jealousy, resentment and anger, ongoing tensions, and, ultimately, a
killing. From the evidence led, it cannot be said that the deceased
was entirely innocent in the history of the relationship. At
times,
her strong personality and temper may well have exacerbated the
friction between the couple.
[25]
The second factor is the extent to which the
accused has gone to express his contrition. Although the state
questioned the sincerity
of his remorse, the court cannot overlook
the evidence presented. He wrote to the deceased’s family and
to his friends, acknowledging
the hurt and devastation that he had
wrought; he met with the deceased’s father, seeking
reconciliation; he faced the deceased’s
family in court,
apologizing for his actions and asking for forgiveness. The state was
correct in testing the accused’s sincerity.
The question must
be asked, however, about what more he could have done. There is
little if anything to indicate that his contrition
is not real.
[26]
In
Director
of Public Prosecutions, Gauteng v Pistorius
,
[17]
the Supreme Court of Appeal could not find that the accused was
genuinely remorseful because he had not taken the court fully into
his confidence. That cannot be said of the accused in the present
matter. Under cross-examination, the accused admitted that he
lost
his temper. It was the way they argued, he said, that had a bearing
on what followed; their aggression was the catalyst for
his actions.
[27]
The court, in the end, must weigh and balance the
set of aggravating and mitigating factors that have become defined
during these
proceedings. It must apply the principles helpfully
summarised by Terblanche and arrive at an outcome that rests,
ultimately, on
an equilibrium achieved between the competing forces
generated by the nature of the crime, the personal circumstances of
the offender,
and the interests of society.
[28]
Consequently, the court makes the following order:
The accused, having been
found guilty of the offence of murder, is sentenced to imprisonment
for a period of 18 years.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCE
For
the State:
Adv
S Mtsila
Instructed
by:
Director
of Public Prosecutions
Makhanda
046 602
3000
For
the Accused:
Adv
N Dyantyi
Instructed
by:
Legal
Aid South Africa
Qonce
043
604 6600
Date
of delivery of judgment:
02
May 2024
[1]
1969
(2) SA 537 (A).
[2]
SS
Terblanche,
A
Guide to Sentencing in South Africa
(LexisNexis,
3ed 2016), at 151-2.
[3]
2019 (2) SACR 594 (WCC).
[4]
2001
(1) SACR 469 (SCA).
[5]
At
paragraph [18].
[6]
Terblanche,
op
cit
,
at 76-8.
[7]
2009
(1) SACR 552 (SCA).
[8]
At
paragraph [3].
[9]
(CC91/14)
[2015] ZAECBHC 9 (19 February 2015).
[10]
At
paragraph [2].
[11]
2011
(1) SACR 540 (ECG).
[12]
At
paragraph [21].
[13]
Vilakazi
,
n 7
supra
,
at paragraph [58].
[14]
2019
(2) SACR 422
(WCC), at paragraph [54].
[15]
2008
(1) SACR 223
(SCA), at paragraph [35].
[16]
Vilakazi
,
n 7
supra
,
at paragraph [18].
[17]
2018
(1) SACR 115
(SCA).