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2024
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[2024] ZANCHC 67
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S v Mongale (Sentence) (K/S4/2023) [2024] ZANCHC 67 (31 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
K/S4/2023
Reportable:
YES / NO
Circulate to
Judges:
YES / NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
THE
STATE
and
WILLIAM
MONGALE
ACCUSED
Heard on:
29/07/2024
Delivered on:
31/07/2024
Summary:
This
is the judgment on sentence. On 2 May 2024 the accused was
convicted on two counts: Count 1: Assault with intent to cause
grievous bodily harm; Count 2: Murder with
dolus
directus
as the form of intent.
ORDER
(a)
In respect of count 1: assault with intent to do grievous bodily
harm, the accused
is sentenced to 12 months imprisonment.
(b)
In respect of count 2: murder, the accused is sentenced to 18 years’
imprisonment.
(c)
The sentence in respect of count 1 is ordered to run concurrently
with the sentence
in count 2 as well as the already imposed sentence
of 3 years imprisonment which the accused is currently serving.
JUDGMENT ON SENTENCE
MAMOSEBO
J
[1]
The accused was convicted of assault with intent to do grievous
bodily harm and murder
with
dolus directus
as the form of
intent. I do not intend to repeat the details of the incident
as they appear from the judgment on the merits.
[2]
This Court has a discretion to impose an appropriate sentence. I
am mindful
that the discretion must be exercised properly and
reasonably. The often-quoted case of
S
v
Zinn
[1]
enjoins
the courts to consider the seriousness of the crime, the personal
circumstances of the accused and the interests of the
society.
Beyond the triad of
Zinn
,
the courts must consider the purposes of punishment that has to do
with the interests of society, which are, deterrence, prevention,
rehabilitation and retribution.
[3]
In
R
v Karg
[2]
Scheiner
JA, writing for a unanimous court, made these salutary remarks:
‘
While
the deterrent effect of punishment has remained as important as ever,
it is, I think, correct to say that the retributive
aspect has tended
to yield ground to the aspects of prevention and correction. That is
no doubt a good thing. But the element of
retribution, historically
important, is by no means absent from the modern approach. It is not
wrong that the natural indignation
of interested persons and of the
community at large should receive some recognition in the sentences
that Courts impose, and it
is not irrelevant to bear in mind that if
sentences for serious crimes are too lenient, the administration of
justice may fall
into disrepute and injured persons may incline to
take the law into their own hands. Naturally, righteous anger should
not becloud
judgment.’
[4]
Holmes JA declared the following in
S
v Rabie
[3]
:
‘
Punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy according to
the circumstances.’
What it boils down to
essentially is, in my view, a consideration of all the relevant
facts, factors and circumstances, maintaining
a fair balance where
all the factors are afforded their due weight according to the facts
of the case.
[5]
The following are the personal circumstances of the accused as
presented by his counsel,
Mr Steynberg, from the Bar. He was born on
1 September 1991, and is currently 32 years old. He is unmarried with
one child aged
10 years. Before his incarceration he resided with his
family in Warrenton. He worked at Aqua Farms for 14 years and earned
R3
800 per month. His highest academic attainment is Grade 6. He was
arrested on 26 October 2022 and has been in custody for an
uninterrupted
period of one year and nine months. Mr Steynberg
submitted that the period that the accused spent in custody is a
factor to be
considered by the court in assessing an appropriate
sentence.
[6]
The accused has previous convictions and is currently serving a
sentence of three
years direct imprisonment for assault with intent
to do grievous bodily harm. On 28 June 2010 he was convicted of the
following:
(i) robbery, (ii) unlawful possession of a firearm in
contravention of
s 3
of the
Firearms Control Act 60 of 2000
and (iii)
housebreaking with intent to steal and theft. Counts (i) and
(ii) were taken together for purposes of sentence
and he was
sentenced to 18 months imprisonment, wholly suspended for a period of
three years on specified conditions. In as far
as (iii) is concerned,
a sentence of 18 months imprisonment was imposed in terms of s
276(1)(i) of the Criminal Procedure Act.
[4]
On 18 November 2013 he was convicted of contravening s 4(b) of Act
140 of 1992 and was sentenced to R500 or 30 days imprisonment
wholly
suspended on specified conditions. On 29 May 2019 he was convicted of
assault with intent to do grievous bodily harm and
was sentenced in
terms of s 276(1)(h) of the Criminal Procedure Act.
[5]
[7]
Mr Steynberg presented the following in mitigation of his sentence:
(a) that the accused
was engaged in an argument with the deceased who
was armed with a knife; (b) the deceased was aggressive towards him;
and (c) even
though the extent to which the alcohol affected the
accused was not determined, it did play a role.
[8]
In as far as count 2 of murder is concerned, it was submitted on
behalf of the accused
that the accused’s personal circumstances
coupled with the fact that he was in an argument with the deceased
who had a knife
in his hand as well as the fact that he was in
custody for a period of one year and nine months should serve as
substantial and
compelling circumstances warranting a deviation from
the prescribed minimum sentence of fifteen years imprisonment for
murder.
Pertaining to count 1 of assault with intent to do grievous
bodily harm, counsel submitted that the fact that there were no
serious
consequences as a result of the assault, in that, the
complainant merely sustained an injury which resulted in a scar of
less than
1 cm, a non-custodial sentence would be appropriate.
[9]
Ms Mafunisa, counsel for the State, handed in by consent three Victim
Impact Statements
of Lerato Rosy Lukang, the deceased’s elder
sister, Lebogang Lukang, his elder brother and Nthabiseng Lukang, his
younger
sister. Four of the six siblings survive the deceased. Lerato
was the most traumatised having lost their parents in a motor vehicle
accident in October 2020 which left them orphaned. The
following year in 2021 their elder brother was shot and killed.
Despite the deceased not being permanently employed, he subsisted on
scraps of diverse employment from which he could contribute
financially towards the welfare of his siblings. The deceased also
assisted with household responsibilities like the general maintenance
of their parental home, fixing appliances, doing the garden, helping
the young ones with their school work and administering their
father’s financial affairs until his death in 2022. Since his
passing the siblings have not received their father’s
financial
contribution. Lerato’s behaviour was evidently adversely
affected by his passing and she had to receive medical
treatment for
it. Lebogang is experiencing loneliness as a result of the loss of
his younger brother. Nthabiseng misses the deceased’s
peaceful
and caring nature and wonders whether the tragic death could have
been avoided had she accompanied him on the fateful
day. It is
evident from their statements that the deceased played a meaningful
role in their lives.
[10]
Ms Mafunisa submitted the following as aggravating circumstances: No
argument between people
should result in a loss of life. The area on
the body where the deceased was stabbed is vulnerable and did not
leave any room for
survival. The complainant in the assault case fell
victim whilst trying to intervene between the deceased and the
accused as the
accused was determined to get to the deceased.
According to Dr Kanaomang, the medical pathologist who conducted the
post
mortem on the body of the deceased, states that the deceased
must have struggled to breathe after the stabbing as he had sustained
internal bleeding. Counsel submitted that the personal circumstances
of the accused ought to recede in the background as enunciated
in
Vilakazi.
[6]
[11]
The deceased was 25 years old when he met his death. His family must
have had expectations of
a bright future for him. He played a
significant role in his family who were dependent on him for their
functionality. The
motive of the accused’s killing is unknown.
Despite intervention the accused aggressively pursued the deceased
and stabbed
him fatally and also injured the complainant, Neo
Molatedi, who was in the process of intervening. The two offences of
murder and
assault with intent to do grievous bodily harm are rife in
the province. Even though the accused’s counsel submitted that
the previous convictions are old, Ms Mafunisa submitted that they
infringed on the other person’s bodily integrity, security
and
the right to life which is constitutionally entrenched. The previous
convictions of robbery and assault with intent to do grievous
bodily
harm are illustrative of the violent nature of the accused when
viewed against the current offences.
[12]
Ms Mafunisa refuted the submission by the defence that this court
must find the existence of
substantial and compelling circumstances,
maintaining that there was nothing in the submissions warranting a
deviation from the
prescribed minimum sentence. Counsel urged this
court to consider a period not less than 20 years’ imprisonment
for the offence
of murder and three years imprisonment for assault
with intent to do grievous bodily harm.
[13]
It is necessary to deal with the contentions that the deceased was
aggressive and armed with
a knife as factors in mitigation of
sentence. Evidence before this court was that the deceased was
holding a 200ml bottle of Old
Buck Gin and a closed okapi knife
pressed against the bottle during the argument but he never produced
the knife nor placed the
accused in any imminent danger. There
is also no evidence of aggression on the part of the deceased. The
claim by the accused
that the deceased was aggressive is clutching at
straws and fabricated. It can never serve as a mitigatory factor
under these circumstances.
[14]
Mr Steynberg further urged this court to consider that alcohol played
a role in the commission
of the offence. Counsel correctly submitted
that the extent to which the alcohol had affected the accused was not
determined. He,
nevertheless pleaded with the court to consider the
effect of the intake of alcohol when imposing sentence. In this
regard the
pronouncements by Holmes JA in
S
v Ndlovu
[7]
are relevant:
‘
Intoxication
is one of humanity's age-old frailties, which may, depending on the
circumstances, reduce the moral blameworthiness
of a crime, and may
even evoke a touch of compassion through the perceptive understanding
that man, seeking solace or pleasure
in liquor, may easily
over-indulge and thereby do the things which sober he would not do.
On the other hand intoxication may, again
depending on the
circumstances, aggravate the aspect of blameworthiness (see sec. 350
of the Code) as, for example, when a man
deliberately fortifies
himself with liquor to enable him insensitively to carry out a fell
design. In the result, in seeking a
basic principle in regard to
intoxication and extenuation in murder cases, it is neither necessary
nor desirable to say more than
that the Court has a discretion, to be
exercised judicially upon a consideration of the facts of each case,
and in essence one
is weighing the frailties of the individual with
the evil of his deed.’
[15]
In the case before me, regard being had to the facts of this case,
the consumption of alcohol
coupled with the accused’s
utterances of the previous evening that he was going to kill someone,
can only weigh as an aggravating
factor because it enabled him to
carry out the senseless killing.
[16]
The crimes for which the accused was convicted arose at a tavern
which is a public environment
and to which everyone above the age of
eighteen years has access. Unfortunately, in this instance, there
were minors who were exposed
to the commission of these crimes
because they are used to loitering around outside the tavern. This is
a social ill that bedevils
our society and damages young minds. For
the accused to have uttered as he did, in the presence of the minor
witnesses, that he
was going to kill someone the following day, shows
that a probability of a repetition of murder and or any other crime
for that
matter, was highly probable. In settings of this nature, to
consider other forms of punishment other than deterrence and
retribution
as a purpose of sentence, would be fanciful. In any
event, the accused has already benefitted from the other forms of
punishment
like correctional supervision and suspended sentences.
[17]
As to rehabilitation, the accused has already had his fair chance of
a second bite to many cherries.
As correctly pointed out by his
counsel he has not felt the deterrent effect of a relatively long
term of imprisonment and for
this court to impose a non-custodial
sentence will, in my view, overemphasise the accused’s personal
circumstances and under-emphasise
the heinousness and moral
reprehensibility of the crime of murder and violent crimes in
general. I am further mindful of the primary
focus of individualising
the sentence of the accused despite the prevalence of the serious
crimes that he has committed. The accused’s
personal
circumstances pales into insignificance when weighed against the fact
that he is facing a substantial term of imprisonment.
[18]
The Supreme Court of Appeal in
S
v Matyityi
[8]
cautioned
that the sentencing options considered needs to be victim-centred.
With the information of both the accused and the victim
at hand, one
is able to have a balanced approach to sentencing which would enhance
proportionality rather than harshness when sentencing
the accused.
[9]
The death of the deceased left his family traumatised. The
complainant, Neo, also deserves justice. There was no ground of
justification
for the murder and the assault on Neo.
[19]
In as far as the offence of murder is concerned, the factors raised
by the accused’s counsel
are but personal and mitigating
circumstances. I could not find any substantial or compelling
circumstances to deviate from the
prescribed minimum sentences. In
striving to achieve the right balance or a more proportional sentence
which meets the societal
demands, the seriousness of the offence and
is not unfair to the accused, my consideration is predicated on the
fact that 15 years
imprisonment is a prescribed minimum sentence and
does not limit this court’s sentencing jurisdiction of life
imprisonment
irrespective of the prescribed minimum sentences.
[20]
The accused has been incarcerated for an uninterrupted period of one
year and nine months.
On the murder count, if 20 years
imprisonment was the appropriate sentence then the terms of my order
are adapted to take into
account the period of incarceration awaiting
trial. It would therefore mean that the appropriate sentence for
murder would be 18
years imprisonment.
[21]
In as far as the offence of assault with intent to do grievous bodily
harm is concerned, it is
not about the injury sustained or that the
complainant deemed it unnecessary to lay charges against the accused,
but the object
used, the area of the body aimed at and the intention
that the accused had when causing that injury. It is about the
interests
of justice and respect for the law. Neo was actually
fortunate that he lived to tell the tale. The duty remains with the
courts
to dispense justice and promote public confidence and respect
for the rule of law.
[22]
On a conspectus of all the evidence, the submissions and all the
authorities considered, the
accused is sentenced as follows:
(a)
In respect of count 1: assault with intent
to do grievous bodily harm, the accused is sentenced to 12 months
imprisonment.
(b)
In respect of count 2: murder, the accused
is sentenced to 18 years’ imprisonment.
(c)
The sentence in respect of count 1 is ordered to run concurrently
with the sentence
in count 2 as well as the already imposed sentence
of 3 years which the accused is currently serving.
MAMOSEBO J
THE HIGH COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
For the State
Adv E Mafunisa
Instructed by:
The Director Public
Prosecutions
For Accused:
Mr H Steynberg
Instructed by:
Justice Centre,
Kimberley
[1]
S
v Zinn
1969
(2) SA 537 (A)
[2]
R
v Karg
1961 (1) SA 231
(A) at 236A-C
[3]
S
v Rabie
1975
(4) SA 855
(A) at 862G-H
[4]
S
276(1)
(i)-
imprisonment from which such a person may be placed under
correctional supervision in his discretion by the Commissioner.
[5]
S
276(1)(h) – correctional supervision
[6]
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 58
[7]
1965
(4) SA 692
(A) at 695C-E
[8]
S
v Matyityi
2011
(1) SACR 40
(SCA) at 48g
[9]
Matyityi
para 17