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[2024] ZAECMKHC 142
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S v Seyisi (Sentence) (CC27/2024) [2024] ZAECMKHC 142 (18 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION
– MAKHANDA]
CASE NO.: CC27/2024
In the matter between:
-
THE
STATE
and
NOMSA CAROLINE
SEYISI
ACCUSED
JUDGMENT ON SENTENCE
NORMAN J:
[1] This court found the
accused guilty and convicted her on Counts 1 (Murder of one Mr.
Thembinkosi Wambi) and Count 2 (Attempted
Murder of Zukiswa Frans).
She was acquitted on the charge of robbery. Mr. Engelbrecht
represented the State and Mr. Stamper represented
the accused.
[2] In the indictment, as
indicated in the judgment on conviction, the Director of Public
Prosecutions (DPP) mentioned that there
are aggravating circumstances
as defined in section 1(1)(b) of the CPA that were present in that
the accused wielded firearms and
grievous bodily harm was inflicted.
In the event of a conviction the DPP indicated that in respect of
Count 1, he would rely on
the provisions of section 51(1) read with
Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997
(the CLAA) which prescribes
a discretionary minimum sentence of life
imprisonment in that the murder was committed by a group of persons
acting in the execution
of or furtherance of a common purpose and the
murder was premeditated.
[3] After conviction the
defense requested that a pre- sentence report be obtained. Indeed, a
report was compiled by the Social
Worker, Mrs. Nomonde Precious
Stamper (Mrs. Stamper) and submitted to court. Mr. Stamper
indicated that he needed to question
Mrs. Stamper about some of her
findings. On 13 November 2024, Mrs. Stamper appeared in court. Her
qualifications and expertise
were not placed in issue. She confirmed
that she compiled the report after assessing the accused and having
interviewed her family
members and her
children.
She
was taken to task by Mr. Stamper on her findings that the
accused did not seem to take responsibility and that she showed no
remorse.
[4] It is apparent from
her report that she had consulted with the accused’s family
members including her children. She consulted
with the accused. In
her opinion, she found that the accused lacked remorse and lacked
insight and appreciation of the impact of
the offences on the
victims. That was one of the reasons that she recommended a custodial
sentence which would expose the accused
to all the rehabilitative
programs that the correctional centers offer to offenders. She
considered various other options, such
as, payment of a fine,
community corrections and suspended sentences.
[5] Having considered all
that she was of the view that direct imprisonment would be suitable
for the accused. She was cross-
examined at length by Mr.
Stamper on, inter alia, her opinion that the accused showed no
remorse. It was put to her that a person
may not show remorse if that
person intends to appeal the decision of the court. Mrs. Stamper was
adamant that remorse is linked
to rehabilitation. She acknowledged
the fact that a person has a right to appeal a conviction.
[6] She was of the view
that a person needs to take charge of the offence and take
responsibility. She further stated that when
a person lacks insight
into the offence, it means she does not understand the seriousness of
the offence, or the damage or impact
of the offence on the victims
and that in turn increases the risk of re-offending. It is only
when a person has a full understanding
of the seriousness and impact
of the offence that he or she will start to feel remorse, she stated.
She explained that the rehabilitative
programs assist the candidate
to identify the contributing factors to the offence. She stated that
when a person is assessed that
person is allowed to talk about the
offence.
[7] When being asked by
Mr. Engelbrecht about rehabilitation, she stated that it is like one
saying she needed to see a doctor because
he has a headache and when
he gets to the doctor he tells the doctor that he has a stomachache.
The medication given for
a stomachache will not treat the headache.
She stated that rehabilitation is focused on ensuring that a person
will not re-offend,
and it is therefore that a person takes
responsibility for his or her actions.
[8] She explained that
the purpose of rehabilitation is to address the cause or the problem
that would make the person commit a
particular offence and
rehabilitation is to equip the person so that she does not re-offend.
She stated that you do get offenders
who deny the offence but later
on accept and understand the impact of the offence.
[9] She stated that the
session with the accused was from 11:30 until 14h20. She regarded
that time as sufficient for her to formulate
an opinion. She
recommended direct imprisonment as an option that would benefit the
accused as she would receive therapy and treatment.
She stated
that she recommended direct imprisonment because of the accused’s
present level of functioning that related
to the risk of her not
taking responsibility. She was of the view that direct imprisonment
would prevent the accused from being
exposed to society until such
time that she is able to identify problem areas. She stated that the
accused will receive treatment
and various programs that will also
open up dialogue between her and the victims. They will strengthen
family ties. Those programs
would cause her to realize the harm
caused to the victims. She was excused from court.
[10] On 15 November 2024,
during argument on sentence, Mr. Stamper raised an issue that the
Court must not impose a sentence that
would rupture family life if
the accused as a primary caregiver of the children, is sent to
prison. In this regard, he submitted
that although there is reference
in Mrs. Stamper’s report to certain programs, it is not very
clear as to how this offence
would impact on the children if the
mother is imprisoned for a long time. He submitted that the report of
Mrs. Stamper does not
deal with that aspect. The court was of
the view that since that aspect was not canvassed with Mrs. Stamper
when she testified,
she should be recalled. The matter was postponed
to Monday, 18 November 2024 for that issue.
[11]
Today, Monday, 18 November 2024 Mrs. Stamper attended court. She
was asked about the impact that the incarceration of
the accused on
the children would have. I deal with her evidence later in this
judgment.
Defense submissions
[12] The parties did not
lead evidence in aggravation or mitigation. Mr. Stamper submitted
that the court should deviate from the
imposition of life
imprisonment based on the following substantial and compelling
circumstances:
(a)
That in the indictment section 51(1) which makes reference to life
imprisonment is relied upon by the State in respect of the
murder
charge. In count 2, however, there is no reliance on section
51(1). In this regard the court could impose its common
law
jurisdiction on sentences.
(b)
The fact that the accused is a first offender, and in this regard, he
relied on
State
v Solomon
[1]
.
He
stated that a term of life imprisonment given the facts of the case
would amount to disproportionate punishment. As a first offender
that
means that the accused has no previous convictions.
(c)
The fact that a person is a primary caregiver would not be a
substantial and compelling circumstance on its own. What the court
needs to consider is a possibility of rupturing the family life. He
referred, in this regard, to paragraph 20 in S
v
M.
He submitted that the only way to avoid rupturing family life is by
not imposing life imprisonment. If the court does not impose
life
imprisonment, he argued, the accused would benefit from the parole
system. He argued that life imprisonment is equivalent
to death, and
it will certainly rupture the family life of the accused’s
children. He emphasized the aspect of adequacy of
imprisonment on a
primary caregiver. The issue of an alternative form of punishment
does not mean sentence must be imposed as if
the person was not a
caregiver. He also relied on
S
v M
[2]
,
where emphasis was placed on the provisions of section 28(2) of the
Constitution. He argued that the fact that when a custodial
sentence
is an issue these provisions of the Constitution do not create a
situation where an accused person would escape being
imprisoned. The
effects on children should be considered and courts are obligated to
take into account the rights of a child. He
argued that the issue is
not the sentencing of the primary caregiver on its own but the fact
that in the imposition of the sentence
the court must have regard for
the children.
(d) The accused was not a
direct perpetrator. She was found guilty based on the doctrine of
common purpose that she acted as a co-perpetrator.
He argued that
this aspect should count in her favor. The court must bear in mind
that the doctrine itself bypasses causation.
If the court takes all
these factors into account, cumulatively, they do constitute
substantial and compelling circumstances, he
argued.
(e) That absence of
remorse is not an aggravating factor. If remorse is expressed
genuinely, it might be a mitigating factor. In
this regard, he relied
again on the
Solomon
judgment at paragraph 8.
(f)
The accused has been in custody since 28 August 2023, a period of
more than a year. That period should be taken into account.
Relying
on
State
v Malgas
[3]
he submitted that a court shouldn’t impose a sentence that
would render it unjust and disproportionate. Once the court has
a
feeling that the sentence is one that makes it uncomfortable, the
court must weigh the interests of the accused, her character
and her
personality and impose a lesser sentence. In this regard, he made
reference to the report of Mrs. Stamper at paragraphs
12, 14, 15 and
16 which display the personality of the accused. He argued that the
decision in
S
v Vilakazi
[4]
,
is
instructive on the issue of disproportionate sentences
[5]
.
(g) He argued that a
sentence other than life imprisonment should be imposed.
State’s
submissions
[13]
Mr. Engelbrecht, on the other hand, submitted that the court must not
overlook the fact that
the accused was found guilty on the basis that
she was part of a pre-planned plot to kill the victims. She played an
integral part
in both the preparation and the execution of the
offences. It makes no difference whether she pulled the trigger or
not. There
are factual findings made by the court that there must
have been a substantial amount of planning and involvement in luring
them
away from their home to a place where they were going to be
executed and the fact that they made sure that there were no
witnesses.
[14]
He argued that our courts have considered the maximum penalty for the
cases where there is reliance on common purpose. In this
regard he
relied on
State
v Monye
[6]
.
He argued that the facts in
Nduwana
case
are more relevant to the case at hand because the court in that case
also dealt with sentencing of a primary care giver. He
also referred
to
DPP,
Gauteng v Totetsi
[7]
.
He submitted that the court has to send a clear message that this
type of offence is an abomination and is corrosive to the foundation
of justice, and people must know that if they commit these kinds of
offences they will be severely punished. He referred the court
to
S
v M
[8]
for
the submission that a court should not allow a situation where
children are used as a shield to avoid appropriate punishment.
He
submitted that there is no other alternative sentence.
[15] He submitted that
the accused’s children are being taken care of. They reside
with her sister. Their father contributes
towards their well-being
and their schooling. There is nothing to suggest that they would not
be taken care of. The court is not
obliged to go any further than
that.
[16]
On the issue of remorse, he submitted that absence of remorse has a
very negative impact on the prospects of accused’s
rehabilitation. She persisted on a patently false defense that is a
factor that weighs heavily against her on its own. She
does not
bode well for rehabilitation. He referred the court to S v
Matyityi
[9]
judgment
as a judgment that actually deals with the issue of remorse. He
further argued that the fact that she has been incarcerated
prior to
trial is not a feature that can weigh enough to amount to substantial
and compelling circumstances. He relied on
Malgas
that for an issue to constitute substantial and compelling
circumstances in nature that issue needs weighty justification and
the factors raised by counsel for the accused fall short of that
standard. He argued that the State had asked for life imprisonment
and that is justified in this case, it is not disproportionate
considering the triad that the court has to apply. In these matters
there would be no justification to deviate therefrom.
[17] On the attempted
murder charge, he submitted that there are aggravating factors in
relation to that offence. Ms. Zukiswa Frans
was forced to lie down
when she had been taken out of the safety at home, the terror that
must have visited her at the time awaiting
her death. Fortunately,
she was struck on her hand and not on her head. He submitted that
there was a clear intent to kill her,
and a long term of imprisonment
is the only reasonable one.
Discussion
[18]
If there is one difficult task for the court in a criminal case is
the imposition of sentence. The Court has to balance various
interests, namely, those of the community, your interests as a mother
with children and your personal circumstances, and the gravity
of the
offences that you committed. I have to consider the interests of your
children. Is imposing a term of life imprisonment
proportionate
to the offences committed?
[19]
In
S
v Malgas
[10]
, the Supreme
Court of Appeal stated:
[25]
What stands out quite clearly is that the courts are a good deal
freer to depart from the prescribed sentences than has been
supposed
in some of the previously decided cases and that it is they who are
to judge whether or not the circumstances of any particular
case are
such as to justify a departure. However, in doing so, they are to
respect, and not merely pay lip service to, the legislature’s
view that the prescribed periods of imprisonment are to be taken to
be ordinarily appropriate when crimes of the specified kind
are
committed. In summary –
A
Section 51 has limited but not eliminated the courts’
discretion in imposing sentence in respect of offences referred to
in
Part 1 of Schedule 2 (or imprisonment for other specified periods for
offences listed in other parts of Schedule 2).
B
Courts are required to approach the imposition of sentence conscious
that the legislature has ordained life imprisonment (or the
particular prescribed period of imprisonment) as the sentence that
should
ordinarily
and in the absence of weighty
justification be imposed for the listed crimes in the specified
circumstances.
C
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
courts.
D
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E The
legislature has however deliberately left it to the courts to decide
whether the circumstances of any particular case call
for a departure
from the prescribed sentence. While the emphasis has shifted to the
objective gravity of the type of crime and
the need for effective
sanctions against it, this does not mean that all other
considerations are to be ignored.
F
All factors (other than those set out in D above) traditionally taken
into account in sentencing (whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick (“substantial
and compelling”) and must be such as cumulatively justify a
departure from the standardised response that the legislature
has
ordained.”
Are there substantial
and compelling circumstances?
[20] Your personal
circumstances as recorded by Mrs. Stamper are that: You are 47 years
old. You have a matric, a certificate
in paramedics, and a
certificate in auxiliary social work. You worked for Sanlam Sky as a
sales advisor. You had previously worked
for Statistics SA and
Gardmed, employment that terminated when you were arrested. You were
married in 2010 and got divorced from
your husband in 2021. You have
two children born of the marriage. Your ex-husband continues to
visit and support your children.
He is currently not well. He
pays for all the children’s educational needs and the children
also receive R3000 per
month from him. Your sister, Neliswa,
described you as an extrovert. She told Mrs. Stamper that you
are a good person
who loves beautiful things. She stated that you
love your children.
[21] You are a
breadwinner, and you take care of every family member. You
described yourself as having been good in academics
when you were at
school and that you were also a queen of majorettes. You told her
that you are a good listener. You have a chronic
illness which is
being managed with treatment. You reported that you were of sound
health. Prior to your arrest you were
earning R9000.00 per
month and your contract was about to end at the time of your arrest.
You were born and bred here in Makhanda.
Your parents are both
deceased. You reside in a family home with your siblings and
your children. The relationship between
you and your siblings is
sound. Your home has been described by Mrs. Stamper in her report as
a conducive environment for raising
children. You are a member
of the Methodist Church. You were raised in a Christian environment,
your family also observed
and performed traditional cultural
practices. You do not abuse any substances. You conveyed to
Mrs. Stamper that your children
are in good care by your sister,
Neliswa. Neliswa also reported that this incident broke your family
apart. The family finds it
difficult to face the community. They feel
that your absence has left a void at home. Your child who is at
tertiary is continuing
with therapy and his academics remain good.
[22] Mrs. Stamper also
interviewed the families of the victims. They stated that they live
in fear. Thembinkosi was described
as a quiet person who was
doing piece jobs and supporting his family. Zukiswa could not
be interviewed as she was reported
sick. Zukiswa has seven
children and the last born is the one born out of the relationship
with the deceased. Her children
are receiving foster grants and are
looked after by her siblings. She was described as a very
helpful person. Her sister
Nomthandazo informed Mrs. Stamper that
after the incident she lost all function in one of her hands.
She no longer visits
her children because she fears for their lives.
Family members have distanced themselves from her as they believe she
would place
their lives in danger. Zukiswa’s children fear for
their lives as they believe the attackers will come and shoot them
when
their mother is at home. That fear was heightened by the thought
of feeling unsafe around their mother.
[23] I have considered
various factors that the defense Counsel listed as factors that,
according to him, constitute substantial
and compelling
circumstances. I disagree with him for these reasons:
(a) The accused is
a first offender and at the age of 47, this is the first time she
came into conflict with the law, but
she planned, facilitated and
actively participated in the horrific murder of Thembinkosi and the
attempted murder of Zukiswa. She
committed the offence with people
that had told her that they were ‘wet’ and needed to be
‘cleansed’, which
in her version, meant that they had
committed an offence. She associated herself with their actions
throughout. These facts
tower above the fact that she is the
first offender. In the
Solomon
decision at para 18,
relied upon by Mr. Stamper, Rogers J ( as he then was ) stated:
“
[18] Neither
accused has a previous conviction for violent crime. However,
s 51(1), unlike s 51(2), does not draw
a distinction
between first and multiple offenders. The fact that an accused is a
first offender may, in combination with other
factors, lead a court
to the conclusion that life imprisonment would be disproportionate
punishment, but on its own it cannot have
that effect.”
(b)
The
accused concealed the identity of the two co – perpetrators
from the police and from this court. She did not report the
incident
to the police for a period of two days. She only went to the police
after she heard that the police were looking for her
at her home. The
consequences of concealing their identity, including the color of the
motor vehicle they were driving, means that
the police will not be
able to apprehend them. She has protected them from the law
enforcement agencies. That is sufficient
reason, in my view, to
protect our society from her.
(c) I disagree that
the accused was not a direct perpetrator. I dealt with this aspect at
length in my judgment on conviction.
She went with her perpetrators
to look for Zukiswa. She lured Zukiswa and Thembinkosi into the
vehicle of the co–perpetrators
under false pretences that she
needed to be taken to Black Cat. She told them to board the vehicle
as it was her friend’s
vehicle. She made the vehicle to stop as
she said she wanted to urinate. She pulled Zukiswa out when she
refused to get out of
the vehicle. Thembinkosi was also pulled out by
Siya. They were made to lie face down and shot at close range. She
put her foot
on their backs to check whether they were alive as
directed by one of the perpetrators. She, together with the
co-perpetrators,
boarded the vehicle and left the victims there for
dead.
(d)
Section
28 (2) of the Constitution enjoins the courts that in any matter
involving children, their interests are of paramount importance.
This
section entrenches the rights of all children not just those of the
accused persons. You and your co- perpetrators caused
the death
of Thembinkosi and now his child is without a father at the age of 7.
He left his partner, Zukiswa who is sickly and
unemployed. That
was a family that was ruptured intentionally. This court must take
into account that child’s interests
as well.
(e)
The
accused’s children, on the other hand, have a father, although
he is not well. According to Mrs Stamper’s
report, he
ensures that their needs are met. He maintains them and pays for
their schooling. You, on the other hand, chose to rupture
your
family. It cannot be that Thembinkosi’s child whose
father was killed in cold blood and his mother was nearly
killed but
was seriously injured by your actions and those of your
co–perpetrators, should have his interests treated as
being
subservient to those of your children. All these children are
innocent in all this, and they must be protected from harm
wherever
it may emerge. Mrs Stamper has informed the court that Lelona who is
at tertiary is well aware of what is happening to
his mother. He is
doing well academically. He is undergoing therapy to deal with this
situation. She referred to him as the
support structure of the
accused because he visits her often at the correctional centre. Mrs
Stamper informed the court that his
concerns are about visits because
if his mother is sent far away, they will not be able to visit her.
Mrs Stamper informed the
court that she informed him that female
offenders are kept in East London and not in Port Elizabeth. In so
far as the younger child,
L, is concerned, he has not been informed
by the family about the position of his mother. Mrs Stamper has
started engaging in a
process where social workers will engage the
family on this issue so that the child may benefit from the
parent-child programs
offered at the facility. She informed the
court that she has been informed by the class teacher that L, is
doing very well
at school and has received an award last week for
academic achievements. The school also reported that the child is
being well
looked after. She further testified that the correctional
facilities have family days to strengthen family ties. She also
testified
that she advised the accused to approach social workers for
telephonic and physical contacts with the minor child which will be
arranged for her. She stated that correctional services regard
corrections as a societal responsibility. She acknowledged that
separation from a parent will have a psychological impact on the
child however there are various programs to address that. She
made an
example that such programs involve children taking their homework to
their parents at the facility. She further stated
that social workers
will do a needs assessment of the child and address those. Having
considered this evidence I am satisfied that
the children will
receive therapy when needed and there will be arrangements made to
facilitate contact with their mother so as
to strengthen the family
unit. I am also satisfied that from the school report to Mrs Stamper
the child is being taken good care
of. The children’s father is
present in their lives and is supporting them financially as well. I
am going to direct
that Zukiswa, and her young children be afforded
therapy to deal with, amongst others, the loss of a father to the
youngest child
and the fears that Zukiswa and the other children are
experiencing.
(g) On remorse, Mrs
Stamper is well experienced, and she formed an opinion that the
accused showed no remorse. This was after she
had assessed the
accused. As aforementioned her expertise was not questioned. I
accept her opinion in this regard. Both parties
consented to her
report being submitted in court as evidence.
In
Matyityi, Ponnan JA had this to say about remorse:
[13]
. . . . .
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.
There is no indication that any of this, all of which
was peculiarly
within the respondent's knowledge, was explored in this case.”(
footnotes omitted) [my emphasis]
(h) As indicated in the
judgment on conviction, the accused did not take this court into her
confidence. As stated in the
Matyityi
judgment
genuine
contrition can only come from an appreciation and acknowledgement of
the extent of one’s error. What the Supreme Court
of Appeal
stated herein corroborates the views of Mrs Stamper in this regard.
(i) In
S
v Thebus
[11]
, the trial court convicted the accused on a count of murder
and two of attempted murder. The trial court had found
that the
State had made out a proper case to warrant a conviction of both
appellants based on the common–law doctrine of
common purpose.
Appellants were each sentenced to eight years imprisonment suspended
for five years on certain conditions.
They launched appeals to
the Supreme Court of Appeal against both convictions and sentence.
The convictions were confirmed by the
Supreme Court of Appeal. The
State had filed a cross–appeal against the sentence imposed.
The Supreme Court of Appeal upheld
the appeal of the State against
sentence and sentenced each of the appellants to fifteen years
imprisonment. The facts of
that case differ from this one. Here
the accused was known to the victims. They trusted her. Zukiswa is
related by blood to her.
She literally facilitated their shooting.
That differs from a random stray bullet hitting an innocent child as
in
Thebus.
(j) In
S
v Nduwane
[12]
,
the accused were charged with conspiracy to commit murder, kidnapping
and murder. They pleaded guilty to kidnapping and
murder and
the charge of conspiracy to commit murder was withdrawn. They
were convicted on their respective pleas of guilty.
They had
murdered a 42-year-old female, Ms Phumla Jim. The murder was
procured to claim benefits under a funeral policy
which
Ms
Nduwane
had taken to cover the life of Ms Jim. When she ran into financial
difficulties, she and her co–perpetrators planned to kill
Ms
Jim. She, just like in this case, had planned with her co-
accused and lured Ms Jim to a ‘braai’ and that
was how
she met her death when she was shot at by her co-accused. At
paragraph 12 and 13 , Goosen J (as he then was) stated:
[12]
Our
society rightly regards murder, when committed for a fee or to secure
some financial or economic gain, as a particularly horrifying
manifestation of the crime. These so-called contract killings conjure
in the mind of ordinary citizens the image of a callous predator
who
treats human life with utter disdain. It is for this reason that a
court, faced with such a crime, will generally be inclined
to show
little mercy in meting out appropriate punishment. In deciding on
what is an appropriate punishment however, it will consider
carefully
the motive for such a killing.
[13] In
S
v Ferreira
2004
(2) SACR 454
(SCA)
Howie
JA, at paragraph [33], said the following:
As to the contract
killing aspect, this is unquestionably a feature that in reported
cases has been regarded as a severely aggravating
circumstance. The
moral blameworthiness of the procurer, however, must depend on the
motive, and subjective state of mind with
which a contract killer is
engaged.
And
at paragraph [70] Marais JA, in a minority judgment, stated:
It
is of course so that the motives which prompt the hiring of contract
killers may vary from those which are undeserving of any
sympathy
whatsoever to those which evoke a great deal of sympathy. And these
variations in motive are equally obviously highly
relevant to the
sentence to be imposed. But after all is said and done, a contract
killing for reward is involved. That is, I believe,
in the eyes of
most reasonable people, an abomination which is corrosive of the very
foundations of justice and its administration.
While there is clearly
room for differentiation of sentences even in contract killings
because the degree of repugnancy of the
motive in one case may be
less than that in another, a court must face the fact that, whatever
the motive, a remedy which society
rightly regards as an abomination
has been unlawfully resorted to by the accused.”
(k)
In
Nduwane
each of the accused persons were sentenced to life
imprisonment in respect of the murder charge.
(l)
In this case, the period of 14 months spent in custody awaiting trial
is not an inordinately
long period of time. In any event it
does not, in and of itself, constitute a substantial and compelling
circumstance.
It is but one of the factors to be taken into
account when a court considers substantial and compelling factors
which would cause
it to deviate from the prescribed minimum
sentence.
[13]
(m) The
accused confirmed that the two men when they introduced themselves to
Zukiswa and Thembinkosi they did not use the
names that were known to
her. To date she has not revealed their real identities. Those
two co–perpetrators are roaming
our streets. That on its own
places, members of our society at risk.
(n) At
the time of the commission of the offence the accused was employed as
a paramedic. A paramedic is a person that society
entrusts with the
lives of our people. She left both Zukiswa and Thembinkosi after they
were shot. Thembinkosi’s life could
have been saved if she had
called an ambulance to attend to them as she was expected to, as a
paramedic. She could not even
help her cousin Zukiswa. She
lacked empathy for them.
(o) The
victims were shot in cold blood, execution style. They had done
nothing wrong. Every life matter, whether a person
who was killed is
rich or poor. The lives of people matter even more when their
lives are to be terminated for insurance
benefits. These types
of offences, as submitted by the State, have become prevalent in our
country. These crimes are brutal
and callous. The accused and her
co-perpetrators had displayed no mercy for the victims. We live
in a country where the majority
of the people live below the poverty
line. The temptation to cover these people for funeral policies is
rife for unscrupulous people.
It is for that reason that a strong
message must be sent to them that insurance companies, created an
industry where it is possible
to give everyone a decent funeral. That
industry has been highjacked by those who have no regard for human
life and have turned
it into an illicit money-making scheme. Those
who participate in those criminal activities must face the full might
of the law.
The time has now come for the insurance companies
to revisit their processes and introduce some safeguards to protect
the
unsuspecting public from those who are abusing these policies for
financial gain.
[24]
I have examined your personal circumstances contained in the social
workers’ report, above, because you did not testify.
I have
also considered the interests of your children and the children of
the victims. I have considered the value in keeping
a family
intact as submitted by your Counsel. I have examined the active role
you played in the commission of the offences. In
trying to balance
the interests of society, your personal circumstances, your interests
and those of the children, the seriousness
of the crime itself, I
could not find any factors that constitute substantial and compelling
circumstances so as to warrant a deviation
from the prescribed
minimum sentence of life imprisonment. I have also considered
whether life imprisonment would be disproportionate
and bring about
an injustice, and I found that it would not. In so far as the
attempted murder is concerned, Ms Frans sustained
serious injuries on
her hand and on the left side of her head. She was hospitalised and
had to be operated on. As a result of the
injuries sustained on her
left hand she has lost all motor function in it. Those injuries
are serious. Having considered
the triad factors I am satisfied
that a sentence of 15 years imprisonment will be proportionate to the
offence committed in Count
2, attempted murder.
[25]
Having considered all the factors mentioned above, I impose the
following sentences:
ORDER
1.
Count
1: Murder
of
Mr. Thembinkosi Wambi
The
accused is sentenced to LIFE IMPRISONMENT
.
2.
Count
2: Attempted Murder
of
Ms Zukiswa Frans
The
accused is sentenced to undergo 15 (FIFTEEN) YEARS IMPRISONMENT
3.
The
sentence in Count 2 shall run concurrently with the sentence in Count
1.
T.V.
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the STATE :
ADV
ENGELBRECHT
Instructed by :
Director of Public Prosecutions
For
the DEFENCE :
ADV STAMPER
Instructed by :
Legal Aid Board SA
Arguments
on mitigation heard on :
13 November 2024; 15 November 2024 &
18
November 2024
Judgment
on sentence delivered on : 18 November 2024
[1]
State v Solomon
2021 (1) SACR 533
(WC) at para 18.
[2]
S v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC); S v M
[2007] ZACC 18
;
2007 (2) SACR 539
at para 32.
[3]
State v Malgas 2001 (1) SACR 469 (SCA).
[4]
S v Vilakazi
2009 (1) SACR 552
(SCA).
[5]
S v Dodo 2001 (3) SA 382 (CC).
[6]
S v Monye
2017 (1) SACR 329
(SCA) at para 19 & 21; S v Mlumbi
(70/1990)
[1990] ZASCA 153 (29 November 1990)
; S v Nduwana 2015 (JBR)
0751.
[7]
DPP Gauteng v Totetsi
2017 (2) SACR 233
(SCA) at para 28.
[8]
S v M 2008 (3) SA 232 (CC).
[9]
S
v Matyityi (695/09)[2010] ZASCA 127;
2011 (1) SACR 40
( SCA)
[10]
S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A) (19
March 2001), para 25 A to G
[11]
S v Thebus
2003 (6) SA 474
CC at para 22.
[12]
S v Nduwane and Others (CC 26/ 2014) [2015] ZAECPEHC 22 (17 April
2015)
[13]
S
v Gcwala ( 295/13)
[2014] ZASCA 44
( 31 March 2014)