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2024
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[2024] ZAECMKHC 93
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S v Manzana and Another (CC31/2024) [2024] ZAECMKHC 93 (14 August 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
- MAKHANDA)
Case No: CC 31/2024
In the matter between:
THE STATE
and
SIYABULELA ANDRIES
MANZANA
Accused 1
UNATHI
TSHALI
Accused 2
SENTENCE
MOLONY
AJ
:
[1]
The two accused in this matter were charged with:
1.1
Two counts of housebreaking with the intention to steal and theft
(Counts 1 and 2).
1.2
One count of murder (Count 3).
1.3
Two counts of robbery with aggravating circumstances (Counts 4 and
5).
1.4
One count of unlawful possession of a firearm (Count 6).
1.5
One count of unlawful possession of ammunition (Count 7).
[2]
The factual matrix, in summary, is that the accused, on 31 May 2023
and on 1 June
2023, broke into and entered two residences on Kroonhof
dairy farm, where they were both employed at the time. They
stole
various items from both residences, including two rifles.
[3]
They then went to the home of the deceased, who was the general
manager of Kroonhof
farm, and, using the rifles, committed robbery by
taking the cellphone of Ms Ongeziwe Gobodo (who was a friend of the
deceased),
as well as the motor vehicle used by the deceased.
The deceased was shot twice (once in the face and once in the back of
the head) during the course of the robbery, and died shortly
thereafter from his wounds.
[4]
The accused planned the housebreakings, and to some extent the
robbery (in regard
to the motor vehicle) and murder prior to the
events occurring. It appears that the robbery relating to Ms
Gobodo’s
cellphone was a crime of opportunity, and had not
factored into the plan prior to it occurring.
[5]
In regard to the murder count, a discretionary minimum sentence of
life imprisonment
is applicable, as it was alleged that the deceased
was killed by the accused acting in concert and in the furtherance of
a common
purpose; and the deceased was killed by the accused during
or after committing robbery with aggravating circumstances.
[6]
A discretionary minimum sentence of 15 years is applicable to each of
the robbery
counts, as it was alleged that the accused committed
robbery with aggravating circumstances and, in regard to one of the
robbery
counts, the offence involved the taking of a motor vehicle.
[7]
The counts relating to unlawful possession of a firearm and
ammunition each carry
a maximum sentence of 15 years’
imprisonment.
[8]
The trial in this matter commenced on 5 August 2024 and ran until 7
August 2024, when
a trial within a trial commenced in regard to an
alleged confession made by accused 1, which confession accused 1
alleged had not
been made freely and voluntarily, and which had been
obtained in violation of his Constitutional rights.
[9]
On 8 August 2024 this court ruled that the confession made by accused
1 was admissible
in evidence against accused 1 in this matter.
[10]
On 12 August 2024 both accused stated their intention to change their
pleas from not guilty on
all counts, to guilty on all counts, and
tendered formal admissions in terms of
section 220
of the
Criminal
Procedure Act 51 of 1977
, which admissions had the effect of
admitting all the elements of all of the offences in question.
[11]
The state thereafter handed in, by agreement, a confession made by
accused 2.
[12]
The state then closed its case, followed by the cases for both
accused being closed.
[13]
After hearing argument both accused were thus found guilty as charged
on 12 August 2024.
[14]
On 13 August 2024 the defence and the state addressed on sentence, it
having been decided not
to lead any evidence in mitigation or
aggravation.
[15]
It is trite that when determining an appropriate sentence, the nature
of the crime, the circumstances
of the offender and the interests of
society must be considered, and that relevant mitigating and
aggravating factors must be balanced
in order to determine a sentence
which is proportionate under the circumstances.
[16]
Accused 1’s personal circumstances are the following:
16.1
He was born on 22 September 1986, and is currently 37 years old.
16.2
He is unmarried, and has no children.
16.3 He
made it to grade 9 at school but is unsure as to whether or not he
passed grade 9, as he did not go and
collect his end of year report
that year.
16.4 He
was raised by his maternal grandmother who currently lives in
Alexandria.
16.5
His mother is still alive, and his father passed away in 2001.
16.6 He
was employed on Kroonhof dairy farm for a short period prior to the
offences being committed, this being
approximately one month,
according to the evidence of Mr Charl Daniel Wilke, the owner of the
farm.
16.7
Prior to being employed on Kroonhof farm accused 1 did gardening work
in Alexandria, earning R750.00 per
week.
16.8
Accused 1 used to suffer from tuberculosis, but received treatment
and it no longer affects him.
16.9 He
has been in custody since June 2023 (a period of approximately 14
months).
[17]
Accused 1 has three previous convictions, those being:
17.1
Receiving stolen property, which sentence was imposed in February
2006, and for which he received a sentence
of a fine of R500.00
alternatively 2 months’ imprisonment. Accused 1 was also
declared unfit to possess a firearm.
17.2
Housebreaking with intent to steal and theft, imposed in January
2006. Accused 1 was sentenced to 18
months’ imprisonment,
which was conditionally suspended for 5 years, along with an
extensive period of community service.
He was, once again,
declared unfit to possess a firearm.
17.3
Possession of dagga in terms of
section 4(b)
of the
Drugs and Drug
Trafficking Act 140 of 1992
, for which he received a sentence of a
fine of R1 000.00, alternatively 100 days’ imprisonment.
The dagga was
declared forfeited to the state.
[18]
It is noted that the only two relevant previous convictions stem from
2006, which is approximately
18 years prior to the commission of the
offences in this matter. In my view the length of time that has
elapsed renders them
of little relevance to the determination of
sentence in this matter.
[19]
Accused 2’s personal circumstances are the following:
19.1
He was born on 8 January 2000, and is currently 24 years old.
19.2
He is unmarried and has one child (a boy who is 8 years old), and who
resides with the accused’s
girlfriend, who is the mother of the
child. The accused and his girlfriend had the child when they
were both 16 years of
age.
19.3
Accused 2 was raised by his grandmother, who lives near Cookhouse.
19.4
Accused 2’s mother resides on a farm near Addo, and his father
resides in Addo.
19.5
He went as far as grade 7 at school.
19.6
He had, at the time of the commission of the offences in question,
been employed at Kroonhof
farm since 2020, and was earning a salary
of R5 200.00 per month. Prior to that he worked with
sheep.
19.7
He has been in custody since June 2023 (a period of approximately 14
months).
[20]
Accused 2 is a first offender.
[21]
The following submissions were made by Mr Geldenhuys in mitigation of
sentence:
21.1
Accused 1 had conveyed that he (accused 1) feels hurt by what he did,
and did not think he would do something
like this.
21.2
Accused 2, similarly, conveyed to Mr Geldenhuys that he feels hurt by
what he has done, and feels remorse
for his actions.
21.3
The personal circumstances of both accused were generally favourable,
and accused 2 was a first offender,
whilst accused 1’s relevant
previous convictions were both very old. Neither of the accused
have previous convictions
for any violent offences.
21.4 It
was unfortunate that the accused only changed their plea late during
proceedings, but they had eventually
come clean and made a full
disclosure. This was indicative of remorse on their part.
21.5
They had co-operated with the police by making frank and full
disclosure when their confessions were taken,
and accused 1 had
pointed out to the police where various stolen items were being kept,
and assisted in finding the motor vehicle
keys that were stolen from
the deceased.
[22]
It was submitted that, whilst the offences were serious, the
prescribed minimum sentences would
be disproportionate to the
well-known triad of factors if imposed, and that the imposition of
the maximum sentence in regard to
the counts relating to possession
of a firearm and ammunition, would be inappropriate.
[23]
It was further submitted that the sentences should run concurrently,
as the offences were all
intrinsically linked.
[24]
Mr Mtsila submitted that the following factors were aggravating:
24.1
There was a level of planning involved in regard to the offences
committed.
24.2
There appeared to be no good reason as to why the accused broke into
two residences, stole rifles (inter
alia), and ultimately killed the
deceased. The evidence led demonstrated that accused 2 was to
some extent dissatisfied with
the manner in which the deceased was
running the farm and treating employees.
24.3
The deceased was an important member of the farming industry, with
Kroonhof farm generating almost R80 million
per year. The
farming community had suffered a significant loss due to the death of
the deceased.
24.4
Both accused were authors of their own misfortune. They now
requested mercy from this court but had
not shown any mercy to the
deceased. Ms Gobodo, in her evidence, had explained how she had
told the accused to take whatever
they wanted, but to spare her and
the deceased’s lives. The accused ignored her pleas.
[25]
Mr Mtsila submitted further that:
25.1
None of the mitigating factors, alone or considered cumulatively,
amounted to substantial and compelling
circumstances justifying the
imposition of a lesser sentence.
25.2 He
agreed that the maximum sentence should not be imposed in regard to
the counts relating to possession
of a firearm and ammunition, and
suggested sentences of 8 years and 5 years respectively.
25.3 He
agreed that all the sentences should run concurrently and submitted
that this would demonstrate an element
of mercy.
[26]
I was not pertinently addressed (by either the state or the defence)
on the issue of an appropriate
sentence regarding the housebreaking
charges, and presume the parties were content that I use my
discretion in this regard.
[27]
In considering whether or not there are substantial and compelling
circumstances present which
justify the imposition of a lesser
sentence, I will remain mindful of the guidance provided by the
matter of
S
v Malgas
.
[1]
[28]
I will also remain mindful of the fact that the offences occurred
during the same sequence of
events.
[29]
Having carefully considered and weighed the relevant mitigating and
aggravating factors, it is
clear that the aggravating factors in this
matter far outweigh the mitigating factors.
[30]
The accused went to the home of the deceased on the night in question
with the direct intention
to kill the deceased, ostensibly due to
dissatisfaction with working conditions, which is what occurred.
[31]
The reason provided for the murder is shockingly callous,
particularly if one considers the evidence
of Mr Yonwabo Feketshana,
another employee at Kroonhof farm who lived with the deceased and was
present in the house when the deceased
was shot. Mr Feketshana
testified that the relationship between the two accused and the
deceased was fine prior to the incidents
in question, and that there
had been no suggestion of the deceased ill-treating either of the
accused.
[32]
According to accused 1’s confession, Ms Gobodo’s
cellphone was taken to prevent her
from contacting anyone whilst the
accused fled the scene. The stolen vehicle was ultimately
abandoned at the side of the
road, with the two firearms remaining
inside.
[33]
Since the deceased was murdered Ms Gobodo, who witnessed the entire
incident, and pleaded for
her life and that of the deceased,
testified that she had trouble sleeping and would often have
flashbacks. She attended
an identification parade shortly after
the incidents in question, and identified both accused from
photographs, being too terrified
to attend an in-person
identification parade. Her distress was evident when she
testified, and she required a break at one
point as she was crying
and needed to compose herself.
[34]
Mr Wilke testified that, prior to the offences in this matter being
committed, accused 2 had
previously worked as a gardener for Mr
Phillipus Rudolph Mentz (the complainant in regard to one of the
housebreaking charges).
According to Mr Wilke, he had offered
to employ accused 2 on the farm in order to assist, as Mr Mentz had
informed Mr Wilke that
he could no longer afford to employ accused
2.
[35]
Mr Wilke testified further that the deceased (who was, according to
the postmortem report, 25
years old at the time of his death) had
been his friend, and had been the most important employee on his
farm. It was a serious
loss to the business that the deceased
was no longer there to attend to the day-to-day running of the farm.
[36]
The offences involved in this matter are extremely serious, involve
significant violence, and
are prevalent within this court’s
area of jurisdiction.
[37]
Both accused, despite initially co-operating with the police, elected
to plead not guilty to
all the charges, only changing their minds in
regard to their pleas after three days of evidence (including a trial
within a trial).
[38]
In the matter of
S
v Matyityi
[2]
the following was stated:
“
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”.
[39]
Neither of the accused testified or adduced evidence in mitigation of
sentence, relying instead
on brief submissions from the bar in regard
to remorse. In my view neither accused has demonstrated any
degree of genuine
remorse for their actions.
[40]
Given all of the above, I am not persuaded that substantial and
compelling circumstances exist
(in relation to either accused) in
regard to either of the robbery counts or the murder count.
[41]
I also see no reason to differentiate between the accused in regard
to sentence, nor was it suggested
in argument that such
differentiation would be appropriate.
[42]
I accordingly impose the following sentences:
42.1
Accused 1
:
Count
1
:
Housebreaking
with intent to steal and theft
The accused is sentenced
to undergo five
(5)
years’ imprisonment.
Count
2
:
Housebreaking
with intent to steal and theft
The accused is sentenced
to undergo five
(5)
years’ imprisonment.
Count
3
:
Murder
The accused is sentenced
to undergo life imprisonment.
Count
4
:
Robbery
with aggravating circumstances
The accused is sentenced
to undergo fifteen
(15)
years’ imprisonment.
Count
5
:
Robbery
with aggravating circumstances
The accused is sentenced
to undergo fifteen
(15)
years’ imprisonment.
Count
6
:
Unlawful
possession of firearm
The accused is sentenced
to undergo eight
(8)
years’ imprisonment.
Count
7
:
Unlawful
possession of ammunition
The accused is sentenced
to undergo five
(5)
years’ imprisonment.
It is ordered that all
sentences are to run concurrently.
42.2
Accused 2
:
Count
1
:
Housebreaking
with intent to steal and theft
The accused is sentenced
to undergo five
(5)
years’ imprisonment.
Count
2
:
Housebreaking
with intent to steal and theft
The accused is sentenced
to undergo five
(5)
years’ imprisonment.
Count
3
:
Murder
The accused is sentenced
to undergo life imprisonment.
Count
4
:
Robbery
with aggravating circumstances
The accused is sentenced
to undergo fifteen
(15)
years’ imprisonment.
Count
5
:
Robbery
with aggravating circumstances
The accused is sentenced
to undergo fifteen
(15)
years’ imprisonment.
Count
6
:
Unlawful
possession of firearm
The accused is sentenced
to undergo eight
(8)
years’ imprisonment.
Count
7
:
Unlawful
possession of ammunition
The accused is sentenced
to undergo five
(5)
years’ imprisonment.
It is ordered that all
sentences are to run concurrently.
N MOLONY
ACTING JUDGE OF THE
HIGH COURT
Appearances
:
For the
State:
Adv Mtsila
instructed by
Deputy Director of Public
Prosecutions
MAKHANDA
For the
Accused:
Adv Geldenhuys
instructed
by
Legal Aid South Africa
MAKHANDA
Heard
on:
5, 6, 7, 8, 12, 13 & 14 August 2024
Judgment
delivered:
14 August 2024
[1]
2001
(2) SA 1222 (SCA) at para 25.
[2]
2011
(1) SACR 40
(SCA) at para 13.