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[2024] ZAKZPHC 86
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S v Ngcobo (CC49/2024P) [2024] ZAKZPHC 86 (10 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, NORTH EASTERN CIRCUIT
Case
no:
CC49/2024P
In
the matter between:
THE
STATE
and
PHAKAMANI
DUNCAN NGCOBO
ACCUSED
Coram
:
Mossop J
Heard
:
16 and 17 September 2024
Delivered
:
10 October 2024
ORDER
The
following sentence is imposed:
1.
Counts 1 and 2
These counts are taken as
one for the purpose of sentence and a sentence of 15 years’
imprisonment is imposed.
2.
Count 3
A sentence of 25 years’
imprisonment is imposed.
3.
In terms of the provisions of
section
280(2)
of the
Criminal Procedure Act 51 of
1977
,
it is directed that the sentence imposed on counts 1 and 2 shall run
concurrently
with
the sentence imposed on count 3.
4.
N
o
determination is made in terms of
section
103(1)
of
the
Firearms
Control Act 60 of 2000
.
JUDGMENT
MOSSOP
J
:
[1]
This judgment relates to the sentence to be
imposed upon you, Mr Ngcobo.
[2]
I intend commencing on a positive note
insofar as you are concerned. There is much to be said about the
approach that you have taken
with regard to the charges of
housebreaking, robbery with aggravating circumstances and the murder
of Mr Rajendra Chetty (the deceased)
that have been put to you. You
have unhesitatingly pleaded guilty to those three counts. They are
serious counts that ordinarily
attract heavy custodial sentences. It
must have taken some courage on your part to accept that from today
you are to be denied
your liberty for a considerable period of time.
[3]
I was advised that you intended to plead
guilty by your counsel, Mr Tengwa, when a pre-trial conference was
held on 1 October 2024.
You have not wavered in your intent and
yesterday you, indeed, pleaded guilty as you said you would. In
mitigation, your counsel
indicated further that you had been arrested
on 18 December 2023 and the very next day you had made a confession
in exactly the
same terms as the plea that you tendered yesterday. It
seems therefore that it was always your intent to accept
responsibility
for what can only be described as your reprehensible
conduct.
[4]
I
was asked by your counsel to accept that this is a true indication of
remorse on your behalf. Ms Sokhela, who appears for the
State, very
fairly yesterday indicated that she was prepared to accept that to be
the case. In her submissions to me she referenced
the matter of
S
v Matyityi
,
[1]
where Ponnan JA had the following to say on the issue of 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 an 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. In order for the remorse to be a valid consideration,
the penitence must be sincere, and the accused must take the court
fully into his or her confidence. Until and unless that happens,
the
genuineness of the contrition alleged to exist cannot be determined.
After all, before a court can find that an accused person
is
genuinely remorseful, it needs to have a proper appreciation of,
inter alia: what motivated the accused to commit the deed;
what has
since provoked his or her change of heart; and whether he or she does
indeed have a true appreciation of the consequences
of those
actions.’ (Footnotes omitted).
[5]
A
guilty plea is not always an indication of remorse. A guilty plea
in
the face of an open and shut case is, at best, a neutral
factor.
[2]
That,
however, does not appear to be the case in this instance. I say so
for the reasoning that follows. There were no eyewitnesses
to what
occurred within the confines of the deceased’s home because he
lived alone. Neighbours, responding to the deceased’s
screams,
apparently observed two men fleeing from the home into the night but
could not identify them. The State would have had
great difficulty in
prosecuting anyone for the crime. Your undoing, ironically, was the
only thing that you took from the deceased:
his cellular telephone,
which you later sold for R350. The person who purchased it from you
gave it to his girlfriend. She apparently
used it with the deceased’s
WhatsApp application still active on it. The stolen telephone was
then traced through that application
and that ultimately led back to
you.
[6]
That
does not appear to me be an open and shut case.
That this must be so is demonstrated by the fact
that your associate who allegedly committed this crime with you, and
who used to
work for the deceased, was also arrested but refused to
say anything and was, accordingly, freed from police custody because
there
was no evidence linking him to the crime. You, on the other
hand, upon your arrest confessed your guilt almost immediately.
Perhaps
that was a sign of your conscience at work. If it was, it
should be acknowledged by this court. You have also offered to assist
the State in the event of it pursuing a case against your associate.
On a personal level, you have indicated that you would like
to
apologise to the deceased’s family for your conduct. That is a
noble gesture, but I am not sure that it will be possible
given your
circumstances.
[7]
Considering your decision to plead guilty
and the words that are used by Ponnan JA in the extract from
Matyityi
to which I just referred, I am accordingly
inclined to accept that your plea and your general conduct since your
arrest is a sign
of true contrition on your part. In pleading guilty,
I do not lose sight of the fact that you have saved the court time
and have
not required the State to spend precious resources on
establishing your guilt. All that I have just said thus far redounds
to your
credit.
[8]
Before moving on to other considerations, I
shift my gaze to your personal circumstances. You are 34 years of age
and grew up in
the Pietermaritzburg area. Both your parents are now
deceased and you have a brother and a sister. You are single but have
three
children, who range in age from 14 years to 18 months. All your
children are born of different mothers and reside with their
respective
mothers. At the time of your arrest, you were not working
but did piece work from time to time as and when it became available.
[9]
A consideration of your background
undeniably indicates that you do not come from a privileged
background. Your life has not been
an easy one and you have,
unfortunately, succumbed to the temptation of crime. I have no doubt
that your criminal conduct would
have been a grave embarrassment and
disappointment to your parents had they still been alive. Your
criminal conduct has, unfortunately,
brought great shame both on you
and on your family.
[10]
Your criminal record is most distressing.
In fact, it is disgraceful. You have a propensity for housebreaking:
since 2011, you have
been convicted of it on no less than five
occasions. You have also been convicted of theft on 2 occasions.
Notwithstanding this,
the longest sentence of direct imprisonment
that you have received is 18 months.
[11]
Mr Tengwa, your counsel, correctly in my
view, submitted that there is nothing really substantial or
compelling arising out of your
personal circumstances. The relevance
of this is, as you know because it was explained to you by your
counsel and by the court
yesterday, that count two and count three
have prescribed minimum sentences that must be imposed in the absence
of substantial
and compelling circumstances justifying a lesser
sentence.
[12]
I,
however, advise you that I am not compelled to impose the minimum
sentence prescribed. I can impose a lesser sentence if I am
satisfied
that substantial and compelling circumstances exist which justify the
imposition of a lesser sentence. In
S
v Malgas
,
[3]
referred to by Ms Sokhela yesterday in her address to the court on
sentence, the court found that it is incorrect to hold the view
that
for
circumstances to qualify as substantial and compelling they must be
‘exceptional’ in the sense of being seldom encountered
or
rarely encountered. The court in that matter observed that there is
no reason to conclude that the legislature intended a court
to
exclude from consideration, any or all of the many factors
traditionally and rightly taken into account by courts when
sentencing
offenders. However, the court in
Malgas
went on to state that the specified minimum sentences are not to be
departed from lightly and for flimsy reasons which cannot withstand
scrutiny.
[13]
I must turn now to the facts of the matter.
They, unfortunately, do not speak to your credit. The deceased was 72
years old. His
home was broken into by you and your associate in the
early hours of the morning when he was asleep and he met an untimely
and
savage death. He was stabbed in his chest and his back a total of
five times by both you and your associate and suffered a collapsed
lung and a fracture to his skull leading to a subarachnoid
haemorrhage. Those injuries caused his death. You and your associate
caused those injuries. The deceased did not succumb meekly to his
death: he tried to protect himself and there were defensive wounds
observed by the forensic pathologist at his post mortem on his hands.
Both you and your associate armed yourselves with knives
before
proceeding to the deceased’s home. You were clearly prepared
to, and did, use those weapons to subdue the deceased
and rob him and
then to kill him.
[14]
The deceased’s children, Kevin Chetty
(Kevin) and Anneleen Pillay (Anneleen), have deposed to victim impact
statements. They
do not make for easy reading. They are both adults
with families of their own but they have both been traumatised
severely by what
you did. Kevin lived in the same road as his late
father. He indicates that he feels angry towards you because he does
not understand
why his father had to be killed. Only you can provide
the answer to that and despite your frankness in tendering your plea,
you
have not gone that far and explained why the deceased had to be
killed over something as trivial as a cellular telephone. Anneleen
Pillay has explained the loss that she now feels arising out of your
senseless conduct. Her father’s death has meant his
absence
from family events and has deprived him of the ability to watch his
grandchildren grow up. Unlike Kevin, she states that
she does not
feel angry towards you. Her reasoning is that if she shows anger,
that would mean that she feels something for you
whereas she does not
feel anything for you at all.
[15]
The society in which you live is entitled
to have its views considered when it comes to the question of the
sentence to be imposed
upon you. If a sentence does not reflect the
seriousness of the offence, the courts are brought into disrepute.
People expect serious
crime to be dealt with seriously by the courts
and to result in serious sentences. Ours is a very violent
society. Young
men like yourself do not think twice about resorting
to criminal conduct that very often ends with a violent act. It
appears
that taking a life for R175, as you did, being a half share
of the R350 for which you sold the deceased’s cellular
telephone,
is apparently acceptable to you. The message must go out
that it is not acceptable. It has never been acceptable and it never
will
be acceptable to kill someone for his possessions. Your conduct,
in taking that most valuable thing, a human life, must be condemned
by a suitably severe sentence.
[16]
I often remark in imposing sentence that a
murder is a double tragedy. The first tragedy is the death of the
murdered person. The
second tragedy is the fact that the murderer, in
committing the murder, being caught and tried and sentenced, has,
ultimately,
wasted his own life. You will now spend a very long
period of time behind bars. Whatever hopes or aspirations that you
may have
had will never be realised. You consciously decided to
commit the crime and assumed the risk of what might follow. You will
now
spend the greater part of your life as an outcast, separated from
society. And all of that for R175. You will have a long time to
think
about that.
[17]
I have carefully considered all the
representations made on your behalf yesterday by Mr Tengwa. I am
prepared to accept that your
guilty plea is a substantial and
compelling reason to depart from the minimum sentence prescribed for
murder. In sentencing you
I am also conscious of the fact that you
have been convicted of three very serious offences and I must ensure
that the sentence
that I impose upon you is not cumulatively
unbearable and unjustified.
[18]
I accordingly consider the following to be
a just sentence in all the circumstances of this matter:
1.
Counts 1 and 2
These counts are taken as
one for the purpose of sentence and you are sentenced to 15 years’
imprisonment.
2.
Count 3
You are sentenced to 25
years’ imprisonment.
3.
In terms of the provisions of
section
280(2)
of the
Criminal Procedure Act 51 of 1977
, it is directed that
the sentence imposed on counts 1 and 2 shall run concurrently with
the sentence imposed on count 3.
You
will thus serve an effective 25 years’ imprisonment.
4.
N
o
determination is made in terms of
section
103(1)
of
the
Firearms
Control Act 60 of 2000
. That means you may not lawfully possess a
firearm.
Do you understand? I wish
you good luck.
MOSSOP J
APPEARANCES
Counsel
for the state:
Ms
Z Sokhela
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
Counsel
for the accused:
Mr
Mr M Tengwa
Instructed
by:
Legal
Aid South Africa
Pietermaritzburg
[1]
S
v Matyityi
2011
(1) SACR 40
(SCA) para 13.
[2]
S
v Barnard
2004
(1) SACR 191
(SCA)
at 197.
[3]
S
v Malgas
2001
(2) SA 1222
(SCA).