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[2024] ZAECMHC 78
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S v Malundana (Sentence) (CC20/2024) [2024] ZAECMHC 78 (19 August 2024)
FLYNOTES:
CRIMINAL – Murder –
Sentence
–
Accused
age 62 and securing employment as security guard at local school –
Protection of school premises against vandalism
or theft –
Coming across boys at night – Firing shot at they fled –
Cooperated with police and pleaded
guilty – Assisted
deceased’s family with funeral – Appropriate measure
of mercy to restore him to his family
and his community –
Will best ensure his rehabilitation and he can continue to express
his genuine remorse –
Sentences suspended.
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
DIVISION – MTHATHA)
PORT ST JOHNS
CIRCUIT COURT
Case No.: CC20/2024
In the matter between
Reportable
THE STATE
and
NOLALINZIMA NDILA
MALUNDANA
JUDGMENT ON SENTENCE
BROOKS J
[1.]
Mr Malundana has been convicted of murder, attempted murder and the
unlawful possession of an unlicensed firearm.
He pleaded guilty
to the charge by way of a written statement prepared in terms of
Section 112(2) of the Criminal Procedure Act
51 of 1977, (the
statement). Together with the contents of the post-mortem
report and the J88 medico-legal report prepared
by the relevant
medical personnel, both handed in as exhibits, the facts that gave
rise to the conviction are set out in the statement.
[2.]
Mr Malundana had very recently been employed at Mathafeni Junior
Secondary School, Ntshamathe location, Mantusini
Administrative area
in the district of Lusikisiki, Eastern Cape. He was employed as
a security guard.
[3.]
On 23 May 2024 he commenced a night shift duty at 18h00, armed with a
home-made firearm. Between 19h00 and
20h00 he heard some noise
outside the classrooms and coming from the vicinity of the staff
room. Upon investigation he found
a group of young boys next to
the staff room where the wi-fi system was mounted on the wall.
He shouted out, asking what
they were doing and this caused the boys
to run in different directions. He then fired one shot towards
the deceased, (count
1), and the complainant, (count 2). The
shot struck them and the deceased fell down.
[4.]
Mr Malundana went to the deceased to investigate what was happening
and discovered on arrival that the bullet from
his firearm had struck
him on the head. He tried to resuscitate the deceased, but all
his attempts were in vain.
[5.]
On hearing the voices of approaching members of the community he
panicked and ran to his home. Immediately
upon arrival there he
reported the incident to his son. He then ran to the forest to
hide himself and the firearm.
There he received a phone call
from the headman of the area who asked him to come to his residence.
Mr Malundana asked the
headman to phone the police, so that they
could all meet at the headman’s home.
[6.]
Mr Malundana then went to the headman’s home to meet the
police. He narrated the details of the incident
to the police
and led them to the place where he had hidden the firearm. He
discovered too that he had injured the complainant
in count 2, the
bullet causing an injury to his right arm.
[7.]
In considering all the evidence placed before the court by way of the
statement and other exhibits, the court concluded
that the
mens
rea
demonstrated in counts 1 and 2 was that of
dolus
eventualis.
This is where an accused person can objectively
foresee that his or her conduct is likely to cause the death of
another but proceeds
to act regardless of the consequences of that
conduct. Accordingly, the unlawful consequence was not meant or
intended to
occur but came about as a consequence of reckless
disregard of the potential therefor.
Ngobeni v S
(1041/2017) ZASCA127 (27 September 2018).
[8.]
Both the deceased in count 1 and the complainant in count 2 were 13
year old boys. As a result, upon conviction,
the prescribed
minimum sentences that pertain to the convictions in accordance with
the provisions of Section 51(1) of the Criminal
Law Amendment Act 105
of 1997, (the Act), is that of life imprisonment. Less severe
sentences may be imposed by the court
in the event of there being
substantial and compelling circumstances, as contemplated by the
provisions of Section 51(3) of the
Act, that would justify a
deviation from the prescribed minimum sentence.
[9.]
The enquiry into whether or not there are substantial and compelling
circumstances, or truly convincing reasons,
that would justify the
imposition of less severe sentences is an integral part of the
consideration of an appropriate sentence.
It is necessary for
the court to consider the nature and severity of the offences, the
personal circumstances of the offender and
the interests of society,
and to strike a balance between these three aspects.
S v
Zinn
1969 (2) SA 537
(A); S v Scheepers
1977 (2) SA 154
(A)
.
[10.]
The offences of murder and attempted murder rank amongst the most
serious of the common law offences. Indeed there can
be nothing
more serious than the unlawful deprivation of another’s
constitutionally protected right to life, or an attempt
at such
deprivation. However, one must take care not to merely consider
the category or the objective nature of the offence.
What is
required is a consideration of the offence that takes account of all
the relevant facts that are peculiar to the incident
that defines
it.
[11]
The principle is well expressed by Muso J in the
S v Mashaba
(Sentence) (CC29/2021) 2022 ZAMPMBHC 92 (7 December 2022), at
paragraphs [5] and [6]:
“
[5]
The nature of the crime is of considerable importance.
It may be of such significance or so far reaching that a
lengthy
period of imprisonment is the only adequate punishment. In
passing sentence the trial court must take into account
the moral and
ethical nature of the crime, and the gravity of the offence. It
is accepted and is indeed logical that a more
serious crime will
carry with it a greater moral blameworthiness than a minor or less
serious offence. This involves a moral
and value judgment.
A process of arid intellectualism is insufficient. Mere
theorising is insufficient. What
matters finally is how the
court views the crime on its own merits, and all the relevant proven
facts and circumstances must be
carefully considered and assessed.
[6]
Merely to find that a crime by itself
is serious without regard to its setting and its factual
context, and
thereby concluding that the crime committed by the offender is
therefore also serious, is not appropriate, and may
result in a
serious misdirection. The court does not and cannot rely on a
catalogue of crimes. To do so would result
in a purely
mechanistic approach, whereby the court, in its judicial discretion,
would fail to pay due regard to the facts and
circumstances of the
particular crime. The sentence therefore must be commensurate
with the gravity or otherwise of the crime,
and is a necessary
concomitant of punishment.
S
v Haasbroek
1969 (1) SA 356
(E)
.”
[12]
In considering the offender, due regard must be had
inter
alia
to
the following:
·
his age
and background;
·
level of
education;
·
family
circumstances;
·
marital
status;
·
whether
or not he has dependents;
·
motive
in committing the offence, whether for personal gain or being
actuated by some moral or laudable objective;
·
whether
or not there are previous convictions;
·
the
effect of punishment on the offender, particularly if a sentence of
imprisonment were to be imposed;
·
the
prospects of reformation and correction and becoming a useful member
of society;
·
the
presence or absence of remorse or contrition.
S
v Mashaba supra
at
paragraph [7].
[13]
When considering the interests of society, this factor too must take
cognisance of the peculiar context, the nature of
the offence itself
and the personal circumstances of the offender. Whether or not
the offender poses a threat to the community
is a relevant
consideration. So too is the extent to which the offender and
the community may or not have become reconciled
as a result of
contrition on the part of the offender.
[14]
Therefore, the feelings and requirements of the community, the
protection of society against the particular offender
and other
potential offenders must be considered. The maintenance of
peace and tranquillity within the community must be
considered.
Caution should be exercised to ensure that, in this regard, purely
theoretical or notional needs for protection
should not be
overstressed to the detriment of the personal factors of the
offender.
[15]
The peculiar circumstances in which the death of the deceased in
count 1 and the attempt on the life of the complainant
in count 2
occurred, or the nature of the offences, are best described
collectively as a tragedy.
[16]
After years of unemployment and at the age of 62, Mr Malundana
secured employment as a security guard at a local school.
There
is no evidence of him having received training or support in this
capacity. He was armed with a homemade firearm and
presented
himself diligently for a shift of night duty. The aim can only
have been the protection of the school premises
against vandalism or
theft.
[17]
In the discharge of his duty, Mr Malundana responded to noises heard
near the staff room after dark. He found a
group of youngsters
there and suspected that they were up to no good and shouted
questioningly at them. When they ran away
in response he must
have believed that he was correct in concluding that they were
engaged in unlawful activity and he fired a
shot at them. He
did not mean to kill or injure anyone, but viewed objectively he must
have foreseen such a possibility and
proceeded recklessly to fire the
shot. The extent of his error was apparent to him immediately
and he tried to resuscitate
the deceased. He panicked and ran
home. He made a report to his son. Then he hid himself.
Then he asked
for the police to be there and immediately returned to
the headman’s homestead and told them everything.
[18]
Mr Malundana has had a very challenging life. He was obliged to
leave school after reaching only Standard 1 as
the family could not
afford to pay for his education. His father died when he was 10
years of age and his mother was always
unemployed. The young Mr
Malundana looked for employment when he was 15 years of age, leaving
home to KwaZulu-Natal for that
purpose. He was permanently
employed from 1983 until he was retrenched in 1997. Thereafter
he worked the land as a
subsistence farmer in order to maintain his
family. He is married and has eight children. They range
in age from 34
years to 10 years. The youngest three are still
schooling. The elder five show a mixed picture of education,
basic
employment and unemployment. He also has two
grandchildren who are supported by State social grants. His
wife is unemployed.
His family is dependent upon him.
[19]
Mr Malunduna is a first offender. He appears to have met all
the considerable financial and social challenges in
his life by
honest attempts at employment or subsistence farming. Only
recently the latter status was relieved by obtaining
the job as a
security guard against the payment of a salary of R1 500,00 per
month. This is a picture of an honest life
that evinces the
loyalty, pride and dignity of a law abiding
paterfamilias
.
The aim in taking up new employment at the age of 62 was entirely
honourable. The purpose was to continue to support
his family.
The aim of the employment was the protection of the local school
property against vandalism and theft and was
also laudable. It
is indeed tragic that such an opportunity for such an honourable
elderly man to derive an income to maintain
his family should have
produced such a devastating outcome for both his unintended victims,
their families and himself. Had
the youngsters not gathered at
school after dark in such a suspicious way, the incident would never
have occurred. This reality
is an integral part of the
tragedy.
[20]
It is now well established that in order to determine whether or not
an offender demonstrates genuine remorse and contrition,
it is to his
or her deeds, rather than his or her words, that the court must have
regard. See for example
S
v Matyityi
2011 (1) SACR 40
(SCA)
.
[21]
In an unchallenged address in mitigation of sentence, the court was
informed that Mr Malundana had taken all possible
steps to address
the consequences of his reckless actions. He tried to
resuscitate the deceased. He involved the police
and cooperated
with them. Whilst in custody after his arrest, he summoned
members of his family and instructed them to approach
the families of
both his victims and to extend his apology for what he had done.
He contributed an amount of R10 000,00
towards the costs of the
funeral arranged for the deceased. Given the circumstances of
his own relative poverty, this is
an enormous and significant
contribution to have made. The court was informed that all the
families involved are now on good
terms. Clearly Mr Malundana
has taken full responsibility for his actions and has demonstrated
without question that he is
genuinely remorseful. This is the
reason why he pleaded guilty to the charges and took the court into
his confidence.
[22]
The court holds the view that all the aspects referred to above
constitute substantial and compelling circumstances that
would
justify the imposition of sentences less severe than the prescribed
minimum. Given the irretrievable loss of life,
count 1 in
particular, calls for a substantial period of direct imprisonment.
However, the identification of this principle
in objective isolation
is not the end of the enquiry. Uniquely, the interests of
society in the context of the rural community
in which the death of
the deceased occurred do not necessarily require ongoing retribution
for what has occurred. Nor do
they require that the community
be protected from Mr Malundana by his removal from their midst.
He is not a person who has
shown a predisposition towards a
criminality that requires him to be rehabilitated or reformed.
He poses no danger to his
community or to society at large. He
has made the necessary overtures to make peace with those families
whom he offended
by his reckless action. Obviously the pain
felt by the family of the deceased in count 1 is real and ongoing.
Perhaps
this will only dissipate with the gradual passage of time.
It is not something that can be eradicated by the ongoing
incarceration
of Mr Malundana.
[23]
Mr Malundana has spent nearly three months in custody as an awaiting
trial prisoner. It is well known that the
custodial conditions
experienced by awaiting trial prisoners are tougher and harsher than
those pertaining to convicted persons.
See for example
S
v Brophy
2007 (2) SACR 56
(SCA)
.
This reality must be even more the case where the detainee is an
elderly person.
[24]
The question that arises, is whether it is necessary that Mr
Malundana continue to be detained in custody as punishment
for what
has done. One of the main considerations in answering this
question must be the age of Mr Malundana as a first offender.
As the court has indicated, further detention in custody is not a
requirement to bring about some form of reform or rehabilitation
in
his case. The vast majority of his life has demonstrated that
he is a loyal, honourable and honest person. Nor is
his further
incarceration necessarily required as a means of retribution for
wilful, unlawful acts. In his case there are
none. The
change in his status was brought about by a single, ill-considered
over reaction to the circumstances in which
he found himself.
As a 62 year old man with the history I have described, the court is
mindful of the negative impact that
continued incarceration would
have upon Mr Malundana, and the role that he has still to play in
both family and community life.
[25]
The court is also mindful of the overcrowded conditions in
Correctional Services Centres that are best reserved for those
who
can benefit from the necessary period of incarceration therein.
Mr Malundana is not such an individual. It
is the view of
the court that in the particular circumstances of this case, the
appropriate measure of mercy in sentencing Mr Malundana
would be to
restore him to his family and his community. That is the
environment that can best ensure his complete rehabilitation.
That is the environment in which he can continue to express his
genuine remorse in whatever manner may be possible hereafter.
This takes nothing away from the principle that a substantial period
of imprisonment is called for because of the loss of the life
of a
young man and the injury of another. However, the circumstances
of these offences and the unique personal circumstances
of the
offender do not require that he should undergo such a sentence.
Indeed on a conspectus of all the relevant factors,
the interests of
society are best served in this matter by restoring the offender to
his family and community.
[26]
The three offences arise from a single incident. It is
appropriate that the sentences imposed in respect of each
offence
should run concurrently with the other sentences to be imposed.
For the reasons set out above, the court is of the
view that the
sentences to be imposed upon Mr Malundana should be wholly suspended
for a period of 15 years on condition that he
is not convicted of any
offence involving violence committed during the period of
suspension.
[27]
The following sentences are imposed.
27.1
On count 1, the conviction of murder, the sentence imposed is that of
FIFTEEN (15) YEARS IMPRISONMENT.
27.2
On count 2, the conviction of attempted murder, the sentence imposed
is that of
EIGHT (8) YEARS IMPRISONMENT
.
27.3
On count 4, the conviction of possession of a unlicensed firearm, the
sentence imposed is that of
FIVE (5) YEARS IMPRISONMENT
.
27.4
The sentences imposed on counts 1, 2 and 4 shall run concurrently
with each other and shall be wholly suspended
for a period of 15
years on condition that Nolalinzima Ndila Malundana is not convicted
of any offence involving violence that
is committed during the period
of suspension.
27.5
Nolalinzima Ndila Malundana is declared to be a person who is unfit
to possess a firearm in terms of Act 60 of
2000.
RWN
BROOKS
JUDGE
OF THE HIGH COURT, MTHATHA
Appearances:
For
the State:
Adv.
A Bikitsha
Instructed
by
National
Director of Public Prosecutions
Broadcast
House
No.
94 Sissons Street
Fortgale
MTHATHA
For
the Accused:
Mr. Z
Nomlala
Instructed
by
Legal
Aid South Africa
PRD
Building
96
Sutherland Street
MTHATHA
Date
Delivered:
19
August 2024