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[2024] ZAECMHC 81
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S v Monco and Others (Sentence) (25/2018) [2024] ZAECMHC 81 (16 October 2024)
IN
THE HIGH COURT FOF SOUTH AFRICA
EASTERN
CAPE DIVISION: MTHAHA
CASE
NO. 25/2018
In
the matter between:
THE
STATE
Vs
1.
ANDANI MONCO
2.
KWANALE NDLWANA
3.
SIPHOSOMZI TSHEFU
4.
…………………………
.
5.
PHUMZILE MHLATYWA
JUDGMENT
ON SENTENCE
GRIFFITHS,
J.:
[1]
As you are aware the court is at this stage faced with the decision
as to what sentences
should be imposed in respect of the various
counts on which you have been convicted. In the normal course, a
court in considering
sentence is obliged to consider your personal
circumstances, the nature of the crimes committed and the broader
interests of society.
However, as you are fully aware, the provisions
of the Criminal Law Amendment Act (105 of 1997) are applicable to the
robbery and
murder counts.
[2]
Pursuant to section 52 of that Act, the court is obliged to impose
life imprisonment
on the murder counts, and 15 years imprisonment on
each of the robbery counts unless the accused can show that there
exist what
are referred to as substantial and compelling
circumstances. The manner in which a sentencing court's discretion
has been affected
by the provisions of the Act was dealt with by the
Supreme Court of Appeal in the case of
S
v Malgas
[1]
.
The effect of this
decision has been aptly summarized by Plasket J in
S
v Nkawu
[2]
as
follows
[3]
:
"... when sentencing
for crimes specified in the Act, a court is required to ‘approach
that question conscious of the
fact that the legislature has ordained
life imprisonment or the particular prescribed period of imprisonment
as the sentence which
should
ordinarily
be imposed...’.
While the Act shifted the emphasis to ‘the objective gravity of
the type of crime and the public's
need for effective sanctions
against it’, discretion to deviate from the prescribed sentence
was granted to courts ‘in
recognition of the easily foreseeable
injustices which could result from obliging them to pass the
specified sentences come what
may’.
[4] A court may deviate
from the sentence as prescribed if ‘substantial and compelling
circumstances’ are present. In
Malgas
, at paragraph 9,
it was held that it is impermissible to deviate from the prescribed
sentence ‘lightly and for flimsy reasons
which could not
withstand scrutiny’. Apart from this, however, all
factors relevant to determining sentence remain
relevant when the Act
applies and a sentencing court must look to the ‘ultimate
cumulative impact’ of all of these
factors in order to
determine whether a departure from the prescribed sentence is
justified."
[3]
In
S
v Vilakazi
[4]
2009(1)
SACR 552 (SCA)
,
the SCA dealt with the proper approach to determining whether there
are substantial and compelling circumstances that warrant
a deviation
from the prescribed minimum sentence. It said that it is incumbent
upon a court in every case, before it imposes a
prescribed sentence,
to assess, upon a consideration of all the circumstances of the
particular case, whether the prescribed sentence
is proportionate to
the particular offence. In addition, in ultimately deciding whether
substantial and compelling factors exist,
one must look at the
mitigating and aggravating factors and consider the cumulative effect
thereof.
[4]
In considering whether there are such substantial and compelling
circumstances, the
court has considered various factors. These
include all the personal circumstances which have been placed before
me by the accused
themselves, and by Ms Magaleni, a social worker
from the Department of Social Development who testified regarding her
investigation
of the accused and her findings in that regard. I do
not intend to set out chapter and verse of all these personal
circumstances
as they are a matter of record and have been properly
placed before the court. However, it should be made clear that I have
considered
each and every circumstance pertaining to the accused,
including their cumulative effect.
[5]
There are various factors which have been advanced as potentially
being such substantial
and compelling circumstances. In essence,
these are their personal circumstances, the length of time they have
been incarcerated
awaiting finalization of this trial, the fact that
they have been humble and respectful towards the court during the
course of
these lengthy and sometimes arduous proceedings coupled
with the fact that, before these convictions, they were first
offenders
having no previous convictions.
[6]
In addition to these factors so advanced by the accused themselves, I
have also taken
into account a further factor which was indeed the
purpose of obtaining pre-sentencing reports for each accused. Ms
Magaleni has,
as I requested in the earlier court order, provided a
thorough and full report pertaining to the situation the accused
found themselves
in at the Mancoba compound. It has emerged from her
evidence that indeed a type of cult existed at this compound which
was deemed
to be founded in Christianity. However, there is little
doubt in my mind that each and every one of the accused were, to a
degree,
brainwashed into believing that the ethos and principles
applied by this cult were steeped in Christianity and to be followed
without
question. In sentencing the accused therefore, I have taken
this fact into account. However, as stressed by this witness, this
aspect cannot be taken too far.
[7]
Firstly, the accused themselves have denied any form of brainwashing
in this regard.
Secondly, even though certain of the accused did not
receive full formal education, there is no doubt that each of the
four accused
before me are indeed highly intelligent. Not only are
they intelligent, but they are fully alive to what is right and what
is wrong.
Thus, whatever influence may have been brought to bear on
them during their time, or times, within the compound, this cannot be
regarded as having affected their conceptualization of whether their
actions amounted to activities of a criminal nature, or not.
Having
had the experience of watching and listening to the accused over an
extended period of time in this court, coupled with
the evidence Ms
Mageleni, I have little doubt that they were fully aware of the fact
that their various actions as described in
this court amounted to
serious offences.
[8]
I have already touched on the nature of the offences. One only needs
to read the judgment
on conviction in this matter to conceive of the
serious nature of these offences. Accused two and three, in advance
of the attack
upon the police at Ngcobo, committed extremely serious
robberies on an innocent policeman and woman, the sole purpose of
which
was to steal their firearms. These firearms were not simply
stolen for the joy of it, they were stolen for a distinct purpose.
That purpose was for their employment in further serious criminal
activity, the ultimate purpose apparently having been to obtain
more
funds for their cabal within the Mancoba community. Indeed,
thereafter further offences were carried out using these very
firearms. Not only were they carried out, it seems they were carried
out after deliberate planning over a period of time and indeed
a form
of training in the sense that they attempted to make themselves as
fit as possible and trained themselves in the use of
firearms for the
very purpose of furthering their criminal activity.
[9]
Then we have the activities at Ngcobo itself. A number of policemen
were not only
murdered, they were slaughtered. Others are lucky to be
alive to tell the story today. It seems that these perpetrators had
absolutely
no compassion for the life or limb of those whom they
attacked. Indeed, it seems one can liken this to certain military
activities
which are taking place in the Middle East today. At least,
one hopes, those military activities are to some degree subject to
the
rules of war whereas the actions of that night, were not. What
makes these activities worse was that there was ample time for any
of
the individual accused to withdraw from the enterprise as it occurred
over an extended period of time. It seems that attempts
were made to
commence the attack earlier, but were cancelled due to reports made
by accused five who was tasked with reconnoitring
the town before the
group embarked on their mission. As I have said, there was ample
opportunity over an extended period of time
for any one of the
accused to have withdrawn, but none did so. In my view, these crimes
cumulatively are of the most serious nature
one can imagine,
particularly as there were no less than five people murdered and
seven serious robberies, nine in the case of
accused two and three.
[10]
I turn then to the question of remorse. Quite simply none of the
accused have shown any remorse
whatsoever. Remorse can only commence
when one takes responsibility for one’s actions. Each of the
four accused pleaded not
guilty and denied throughout the trial that
they were involved in these crimes. As was said in
S
v Matyityi
[5]
in a case where an
accused pleaded guilty:
“
There
is, moreover, a chasm between regret and remorse.
8
Many
accused persons might well regret their conduct but that does not
without more translate to genuine remorse.
9
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.
10
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.
11
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.
12
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. There is no indication that any of this, all of which
was peculiarly within the respondent's
knowledge, was explored in
this case.”
[11]
In this case, all four accused have not even gone so far as to
attempt to show remorse in this
sense. They simply deny being
involved. It is also difficult in the circumstances to believe that
there is any real chance of rehabilitation.
It has been said that
rehabilitation is always possible, and I would like to believe that
there is some possibility in this case.
[12]
Then there is also the factor that whilst accused two and three do
not have previous convictions,
they indeed were involved in the
robberies of 21 November 2017 and 5 December 2017 which preceded the
attack on the police station
on 21 February 2018. Despite this, they
continued with the criminal activities of 21 February 2018.
[13]
The social worker has also dealt with the family of the various
deceased. They have suffered
to the extent that they do not want to
have anything to do with this trial. They have lost breadwinners and
loved ones. Whilst
the accused have paid lip service to this, they
have not taken responsibility for it. In addition to the families of
the deceased,
there are those who were caught up in the evening’s
terrible happenings and, I have no doubt, suffer the scars therefrom
until today.
[14]
Having considered all these aspects cumulatively and having
considered the proportionality of
the various offences when compared
with the minimum prescribed sentences, I have little doubt that I am
correct in coming to the
conclusion that no substantial and
compelling circumstances exist in this case.
[15]
Regarding the remaining counts which are not subject to the
provisions of that legislation, I
take into account all the
aggravating and mitigating circumstances which I have already set out
in dealing with the question of
substantial and compelling
circumstances.
[16]
Regarding all the counts, I have taken into account the cumulative
effect of the various sentences
and in this regard have taken into
account, in particular, the fact that the accused have been in
custody for a period of approximately
six years and seven months. I
have also considered the fact that, to a degree, they may well have
been influenced by the prescriptive
teachings and culture which
prevailed within the compound and the various other factors which the
accused have placed before me,
in particular, that they have remained
respectful to the court throughout these trial proceedings. I have
furthermore taken into
account, as far as accused five is concerned,
that whilst he has been convicted on the various counts which are
based on occurrences
which happened after he had gone back to the
compound, he was not actually present at these scenes and did not
participate directly
therein. These will be reflected in the
effective sentences to which I will refer.
[17]
You are accordingly sentenced
as follows:
1.
Accused one and five are sentenced on the various counts as
follows:
Count 4:
Robbery with
aggravating circumstances – 15 years imprisonment
Count
5:
Robbery
with aggravating circumstances – 15 years imprisonment
Count
6:
Murder –
life imprisonment
Count
7:
Murder –
life imprisonment
Count
8:
Robbery
with aggravating circumstances – 15 years imprisonment
Count
9:
Robbery
with aggravating circumstances – 15 years imprisonment
Count 10:
Robbery with aggravating
circumstances – 15 years imprisonment
Count
11:
Robbery with aggravating
circumstances – 15 years imprisonment
Count 12:
Robbery with aggravating
circumstances – 15 years imprisonment
Count 13:
Murder – life imprisonment
Count
14:
Murder – life
imprisonment
Count
15:
Murder – life imprisonment
Count
16:
Attempted murder
– 10 years imprisonment
Count
17:
Attempted murder
– 10 years imprisonment
Count
18:
Housebreaking with
intent to commit an offence – 10 years
imprisonment
Count
19:
Possession of a
firearm with intent to commit an offence – 5
years imprisonment
Count
20:
Unlawful possession
of a firearm – 5 years imprisonment
Count
21:
Unlawful possession
of a firearm – 5 years imprisonment
Count
22:
Unlawful possession
of ammunition – 5 years imprisonment
2.
Regarding accused one, the sentences on counts 4, 5 and 19 will
run consecutively and the sentences on counts 8, 9, 10, 11, 12, 16,
17, 18, 20, 21 and 22 will run concurrently with the cumulative
sentence on counts 4, 5 and 19, and concurrently with each other.
The
effective sentence is accordingly 35 years imprisonment on these
counts.
3.
Regarding accused five, the sentences on counts 4 and 16 will run
consecutively and the sentences on counts 5, 8, 9, 10, 11, 12,
17,
18, 19, 20, 21 and 22 will run concurrently with the cumulative
sentence on counts 4 and 16, and concurrently with each other.
The
effective sentence is accordingly 25 years imprisonment on these
counts.
4.
As far as accused two and three are concerned, they are sentenced
to 15 years imprisonment on count 1, and 15 years imprisonment
on
count 2. Their sentences on the remaining counts will be the same as
accused one and five’s sentences on those counts
as set out in
paragraph one hereof.
5.
Regarding accused two and three, the sentences on counts 1, 2 and
16 will run consecutively and the sentences on counts 4, 5, 8,
9, 10,
11, 12, 17, 18, 19, 20, 21, and 22 will run concurrently with the
cumulative sentence on counts 1, 2 and 16, and concurrently
with each
other. The effective sentence is accordingly 40 years imprisonment on
these counts.
6.
Although it may be unnecessary to spell this out, the effective
sentences for each accused as spelt out in paragraphs 2, 3 and 5
hereof will run concurrently with the five sentences of life
imprisonment, which sentences of life imprisonment automatically run
concurrently with each other.
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE STATE :
Ms
Mvandaba
INSTRUCTED
BY
:
Director of Public Prosecutions
COUSEL
FOR THE DEFENCE :
ALL ACCUSED IN PERSON
DELIVERED
ON
: 16
OCTOBER 2024
[1]
2001
(1) SACR 469 (SCA
[2]
2009
(2) SACR 402 (ECG)
[3]
At
page 404, paragraphs 3 -4.
[4]
2009
(1) SACR 552
(SCA), at para 15
[5]
2011
(1) SACR 40
(SCA)