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2024
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[2024] ZAMPMBHC 60
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S v J.N (CC04/2024) [2024] ZAMPMBHC 60 (3 September 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NUMBER CC04/2024
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
03/09/2024
MANTHATA
AJ
In
the matter between:
THE
STATE
AND
J[...]
N[...]
ACCUSED
JUDGEMENT
MANTHATA
AJ
[1]
The accused J[...] N[...] a 53 years old, male major, and the
deceased S[...] P[...] M[...] had
a love relationship. They had three
(3) children aged 19, 16, and 9 years old respectively and were
staying together with the children.
[2]
The love relationship between the accused and the deceased
experienced problems that prompted
the deceased to lay a complaint in
terms of the
Domestic Violence Act 116 of 1998
. Resultant to the
complaint an interim protection order was issued wherein the accused
was ordered not to assault, threaten or
harass the deceased. At some
stage the accused and the deceased went to court for the interim
protection order and same was made
final.
[3]
On the 08/02/2023 an argument ensued between the accused and
deceased. The argument escalated
to the extent that the accused
stabbed the deceased to death. The post mortem report admitted into
evidence as exhibit “A”,
the contents of which were
admitted, indicates that the deceased suffered multiple sharp force
injuries to the neck. The report
indicates several step wounds
sustained by the deceased. A photo album admitted into evidence as
exhibit “D” attested
to this.
[4]
Against the above background, the accused J[...] N[...] appears
before this court, Mbombela High
Court arraigned on a charge of
murder read with provisions of
Section 51(1)
and
Part 1
of Schedule 2
of the Criminal Law Amendment Act 105 of 1997. (murder where there is
domestic relationship between the accused and
the victim).
[5]
Accused who is legally represented pleaded guilty and was convicted
of murder read with the provisions
of
Section 51(1)(g)
of the
Criminal Law Amendment Act 105 of 1997
where the death of the victim
resulted from physical abuse as contemplated in paragraphs (a) and
(b) of the definition of "domestic
violence" in section 1
of the Domestic Violence Act, 1998 (Act No. 116 of 1998), by the
accused who is or was in a domestic
relationship, as defined in
section 1 of that Act, with the victim.
[6]
The offence for which the accused is convicted attracts a minimum
sentence of Life imprisonment
by virtue of the fact the murder arose
out of the domestic relationship between the accused and the victim.
The court is obliged
to impose the prescribed minimum sentence of
life imprisonment and will only deviate to impose such if substantial
and compelling
circumstances exist in terms of Section 5(3) of the
Act 105 of 1997.
[7]
The court held in the case of
S
v Malgas
[1]
that:
“
A court was not
given a clean slate on which to inscribe whatever sentence it thought
fit. Instead, it was required to approach
that question conscious of
the fact that the legislature has ordained life imprisonment or the
particular prescribed period of
imprisonment as a sentence which
should ordinarily be imposed for the commission of the listed crimes
in the specified circumstances.
In short, the Legislature aimed at
ensuring a severe, standardized, and consistent response from the
courts to the commission of
such crimes unless there were, and could
be seen to be, truly convincing reasons for a different response.
When considering sentence,
the emphasis was to be shifted to the
objective gravity of the type of the crime and the public’s
need for effective sanctions
against it…The specified
sentences were not to be departed from lightly and for flimsy reasons
which could not withstand
scrutiny.”
[8]
The court should consider the factors traditionally considered in
assessing an appropriate sentence
in order to determine whether
substantial and compelling circumstances exist. In this regard the
court should consider the nature
of the crime committed, the personal
circumstances of the offender and the interests of the society and
that of the family of the
deceased.
[9]
Ackerman J, in
S
v Dodo
[2]
said that:
“
It should be
remembered that the cause’ of criminal punishment is the
‘offence’, consisting of ‘all factors
relevant to
the nature and seriousness of the criminal act itself, as well as all
relevant personal and other circumstances relating
to the offender
which could have a bearing on the seriousness of the offence and the
culpability of the offender’ and that
consequently ‘the
length of punishment must be proportionate to the offence.”
[10]
Considering the nature of the criminal act, there is no doubt that
murder is a very serious crime. The seriousness
is compounded by the
fact it is a domestic violent related murder where there was a
protection order against the accused. Furthermore,
it is serious in
the sense that it left three (3) minor children without a mother.
What the accused did was a clear demonstration
of a disrespect of the
law.
[11]
This is a clear case of gender-based violence which is a scourge in
our society and community. In
S
v Mudau
[3]
,
an unreported judgement by Mathopo AJA stated the following:
“
Domestic
violence has been a scourge in our society and should not be treated
lightly but deplored and severely punished. Hardly
a day passes
without a report in the media of a woman, or a child being beaten,
raped or even killed in this country. Many women
and children live in
constant fear. This is in some respects a negation of many of their
fundamental rights such as equality, human
dignity and bodily
integrity.”
[12]
Section 11 of the Constitution of the RSA provides that everyone has
the right to life. In
S
v Makwanyane
[4]
,
O’ Regan J stated:
“
The right to
life was included in the Constitution not simply to enshrine the
right to existence…but….to live as a
human being, to be
part of a broader community, to share in the experience of humanity.
This concept of human life is at the centre
of our constitutional
values. The right to life is the most primordial right which humans
have. If there is no life, there is no
human dignity.”
The
accused has deprived the children and the family of the deceased of a
precious life which will never be returned despite whatever
sentence
can be imposed.
[13]
The accused has testified in mitigation of sentence. He confirmed the
fact that he has three (3) minor children
and they are all schooling.
The children receive child social grants which according to him is
collected by the eldest child. He
is no longer staying with the
children and they are staying at their grandmother’s home. He
is employed and still maintains
the children. He asks for forgiveness
and if the deceased’s family were present in court he would ask
them for forgiveness.
[14]
Sachs J said in,
S
v M
[5]
that:
“
Sentencing
officers cannot always protect the children from these consequences.
They can, however, pay appropriate attention to
them and take
reasonable steps to minimise damage. The paramountcy principle,
read with the right to family care, requires
that the interests of
children who stand to be affected receive due consideration. It
does not necessitate overriding all
other considerations.
Rather, it calls for appropriate weight to be given in each case to a
consideration to which the law
attaches the highest value, namely,
the interests of children who may be concerned.”
[15]
In
S v
M
[6]
the court said that a primary caregiver was described as the person
with whom the child lives and who performs everyday tasks like
ensuring that the child is fed and looked after and that the child
attends school regularly.
[16]
The accused is no longer staying with the children and is no longer
taking care of them on daily basis. Under
the circumstances I find
accused not to be a primary care giver. I therefore find that the
interests of the children are outweighed
by the interests of the
society which demand that crime of this nature must be punished
harshly.
[17]
As already stated that the accused pleaded guilty, it is submitted
that a plea of guilty is a sign of remorse
and that it is an
indication accused is a suitable candidate for rehabilitation.
The State on the other hand contended that
the accused displayed no
remorse but a regret of what he had done influenced by overwhelming
evidence against him.
[18]
In
S v
Matyityi
[7]
,
Ponnan JA stated the following regarding remorse:
“
There is,
moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct, but that does not
without more
translate to genuine remorse. Remorse is a gnawing pain of conscience
for the plight of another. Thus, genuine contrition
can only come
from the appreciation and acknowledgement of the extent of one’s
error. Whether the offender is sincerely remorseful,
and not simply
feeling sorry for himself or herself at having been caught, is a
factual question. It is to the surrounding actions
of the accused,
rather than what he says in court, that one should rather look.”
[19]
The accused has to take the court into his confidence and persuades
the court that he is genuinely remorseful.
He kept on saying he is
remorseful but failed to tell the court what has since provoked the
change of heart. This is also viewed
in the context that there was a
protection order against him implying that he had problems with the
deceased. He was ordered not
to assault, threaten or harass the
deceased in terms of the protection order governed by the
Domestic
Violence Act. But
instead he ended up killing the deceased.
[20]
Since there was a protection order against him prohibiting him to
commit violent act, he had sufficient time
for pause and reflection
before he proceeded to commit the offence. But the accused despite
the protection order went on to commit
a violent act. The fact
that the deceased was allegedly cheating on him did not give him a
licence to kill her.
[21]
I considered what the accused said in his testimony in mitigation of
sentence. The fact that he sent his
family delegation to the deceased
to ask for forgiveness at the time of the funeral and that they were
chased. I believe that was
not a convenient time for the family of
the deceased to can deal with the matter.
[22]
Accused said after his release on bail he attempted again to send his
family delegation to the deceased’s
family and his delegation
refused. This incident occurred on the 08 February 2023 and the court
heard accused’s evidence
of mitigation on the 27 August 2024.
It is now 1 year and 9 months that the incident had occurred and
accused saying he did not
have an opportunity to ask for forgiveness.
I am not persuaded that he wanted to ask for forgiveness but failed.
[23]
In
S v
Michele
[8]
the court also found that a plea of guilty does not necessarily
indicate true remorse, particularly where the crime (fraud), once
discovered, would have been almost impossible to deny. In such
circumstances a guilty plea was once more regarded as a neutral
factor.
[24]
I find that the accused failed to take the court into confidence that
his plea of guilty indicate a true
remorse, I find that the plea of
guilty is a neutral factor.
[25]
It is submitted that accused is a candidate for rehabilitation and
the court should therefore consider rehabilitation
as a purpose of
punishment. Rehabilitation is not the only factor to consider as a
purpose of punishment, the court should also
consider, retribution,
deterrence and reformative, and prevention.
[26]
I am of the view that retribution and deterrence, as compared to
rehabilitation as purpose of punishment,
as submitted, should play a
role.
[27]
It was held in
S
v Swart
[9]
that:
“
In our law,
retribution and deterrence are proper purposes of punishment and they
must be accorded due weight in any sentence that
is imposed. Each of
the elements of punishment is not required to be accorded equal
weight, but instead proper weight must be accorded
to each, according
to the circumstances. Serious crimes will usually require that
retribution and deterrence should come to the
fore and that the
rehabilitation of the offender will consequently play a relatively
smaller role”.
[28]
Retribution, being a society’s expression of outrage at the
crime, remains of importance. If the crime
is viewed by society as an
abhorrence, then the sentence should reflect that. Retribution is
also expressed as the notion that
the punishment must fit the
crime.
[10]
[29]
The accused in mitigation of sentence asked the court to impose a
sentence of 25 years imprisonment. Even
if I were to impose such a
sentence, there would be no motivation left for him to become
rehabilitated, because, even if he does,
he will still have to serve
a lengthy period of imprisonment in this case.
[30]
Members of the society at large particularly children and women are
subjected to physical and other forms
of violence. It becomes even
worse if they had to lose their lives as a result thereof. I have
already indicated that this a case
of a gender-based violence. It is
understandable that there is a loud voice from members of the society
and community at large
for protection against cases of this nature.
The ultimate institution that can provide for this protection is our
courts.
[31]
Our court should therefore be wary to impose lenient sentences that
will result in the community losing confidence
in the administration
of justice and our judicial systems and take the law into their own
hands
[11]
.
[32]
I now come to consideration of whether or not substantial and
compelling circumstances exit for the court
to deviate from the
imposition of life imprisonment. I have considered the accuseds’
personal circumstances, his age, marital
status, employment status,
the fact that he is a first offender, the fact that he has three (3)
minor children, and lack of genuine
remorse. I have also considered
the seriousness of the crime and the impact it has on the children. I
have also considered submissions
by the Defence and the State.
[33]
Nugent JA in
S
v Vilakazi
[12]
had the following to say:
“
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, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of “flimsy”
grounds that Malgas said should be avoided.”
I
agree with the court in Vilakazi case and I find that this should be
the position in this case.
[34]
From all the above factors I find that there are no substantial and
compelling circumstances presented for
deviation from the imposition
of the life imprisonment. I am therefore not going to deviate from
imposing the prescribed minimum
sentence.
[34]
Consequently, the accused is therefore sentenced to life
imprisonment.
34.1 No
order is made in terms of Section 103 (1) (g) of the Firearm Control
Act 60 of 2000. Accused is automatically
declared unfit to possess a
firearm.
34.2 It
is ordered in terms of Section 103 (4) of the Firearm Control Act for
the Immediate search and seizure
of:
(i)
All competency certificates, licenses, authorizations
and permits
issued to the accused in terms of this Act;
(ii)
All firearms in his possession; and
(iii)
All ammunition in his possession.
MANTHATA
AJ
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA
DIVISION, MBOMBELA
DATE
OF DELIVERY 03 SEPTEMBER 2024
[1]
2001
(1) SACR 469 (SCA)
[2]
2001
(3) SA 382 (CC)
[3]
2010
JDR 0641 (SCA): (547/13) [2014] ZASCA 43
[4]
[1995] ZACC 3
;
1995
(3) SA 391
CC
[5]
2007
(2) SACR 539 (CC)
[6]
2008
(3) SA 232(CC)
[7]
2011
(1) SACR 40
SCA
[8]
2010
(1) SACR 131 (SCA) par [7]
[9]
2004 (2) SACR 370 (SCA)
[10]
S v Tsotetsi
2019 (2) SACR 594
(WCC) at [29]
[11]
See S v WV
2013 (1) SACR 204
(GNP) and R v Karg 1961 (1) SA 231 (A)
[12]
2009 (1) SACR 552
(SCA)