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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 28/2022
(1) Reportable: No.
(2) Of interest to other judges: No
(3) Revised.
Date: 22 October 2024
Signature
In the matter between:
THE STATE
And
TUMELO OMPHILE MOKONE Accused 1
O[...] S[...] Accused 2
KAGISO LAWRENCE MOKONE Accused 3
JUDGMENT
M Munzhelele, J
[1] The accused, Tumelo Omphile Mokone, O[...] S[...] , and Kagiso
Lawrence Mokone, have been found guilty of the following charges:
Count 1: Theft.
Counts 2-5: Murder of the following individuals: Solomon Raseleka
S[...], Matshepo Revelation S[...], Tshegofatso Millicent S[...], and
O[...] Q[...] S[...] . This is in terms of section 51(1) of Act1, in relation
to accused 1 and 3, Tumelo Omphile Mokone and Kagiso Lawrence
Mokone. In relation to accused 2, O[...] S[...], it is read together with
Schedule 3 and Chapter 10 of the Child Justice Act2.
Count 6: Robbery with aggravating circumstances as defined in
section 1 of the Criminal Procedure Act3, read with section 51(2)(a)
of the Act, in relation to accused 1 and 3 , and in relation to
accused 2, it is read together with Schedule 3 and Chapter 10 of
the Child Justice Act.
Count 7: Possession of a firearm without a license, in contravention
of sections 3 and 90 of the Firearms Control Act4, read together with
Schedule 4 of the Firearms Control Act.
Count 8 : Possession of ammunition without a license , in
contravention of section 90 of Act 60 of 2000, read together with
Schedule 4 of the Firearms Control Act.
[2] This case involves the murder of accused 2's entire family and
robbery where the vehicle and money belonging to accused 2's father
were taken. At the time of these offences, accused 2 was a minor, 15
years of age , while accused 1 and 3 were adults. As a result , accused 1
and 3 will be sentenced in accordance with the minimum sentencing
provisions, while accused 2 will be sentenced in terms of the Child Justice
Act.
[3] During the sentencing hearing , the probation officers' reports were
submitted as exhibits. Exhibit 'AA' was compiled by Masa Chauke for accused
1 105 of 1997
2 75 of 2008
3 51 of1977
4 60 of 2000
1, Tumelo Omphile Mckone ; exhibit 'BB ' was compiled by R.H. Nel for
accused 2, O[...] S[...] ; and exhibit 'CC' was compiled by Hitekani Tryphina
Shivambu for accused 3, Kagiso Lawrence Mckone. A victim impact
statement, compiled by Angelinah Llale, was also submitted as exhibit 'DD' on
behalf of the S[...] family.
[4] The accused did not testify in mitigation of their sentences. The state
did not call any witnesses to testify. They all relied on the pre- sentence
reports which were read into the record.
[5] The personal circumstances of accused 1 are as follows: He is 25
years of age and is the third-born child of Noah Motsepe and Mankidi Mckone.
He has no prior convictions. The accused has no relationship with his
biological father. The accused has N2 obtained at Rose Teach College and a
diploma in mechanical engineering. But maintains a loving relationship with his
stepfather. He enrolled in N3 at Brilliant Minds College but did not complete
his studies due to the lockdown. He became involved in the family business
and enjoys playing soccer . He also assists with home repairs. His family
describes him as loving, friendly , considerate, and humble. A ccused 1 lives
with his mother , stepfather, sister, younger brother, and niece . He has a
girlfriend but is not married and has no children. He is unemployed but worked
at the fam ily business , and he is financially supported by his mother and
stepfather.
[6] The personal circumstances of accused 2 are as follows: She was 15
years old when the offences were committed and was arrested at the age of
20. She is now 24 years old . Before her arrest, she lived with her paternal
aunt until September 2018, after which she lived with Ester Brown. At age 17,
she moved back to her family home , staying in the back room while her
cousin lived in the main house. Accused 2 used to smoke marijuana and later
became addicted to crystal meth. She completed Grade 12 and has been
became addicted to crystal meth. She completed Grade 12 and has been
awaiting trial for two years. She receives R2 ,000 from her father's pension
but has been unable to access it. Accused 2 is healthy , without chronic
illnesses, but alleges that the death of her parents traumatized her . She
was referred to SANCA for drug treatment and also received counselling
at Ga Rankuwa Clinic, although she did not cooperate fully.
[7] The personal circumstances of accused 3 are as follows: He is 25
years old with no prior convictions . He is unmarried, has no children, and
has two siblings. He has a girlfriend who is expecting a child . His mother
is a domestic worker who returns home only on weekends, and accused
3 took care of his younger sister , performing all household chores. He
completed Grade 12 and was employed as an operator , earning R1,800
per week.
[8] Victim Impact Statement - S[...] and Brown Family:
The family has been severely affected by the death of their brother .
Signs of trauma, anger, disappointment, and hurt were evident
during interviews. Discussing the event brought back painful
memories, which were e xacerbated by the knowledge that the ir
relative, O[...], who was the child of the deceased , was actively
involved in the murder of her own family. Accused 2's aunt now
suffers from depression and anxiety , struggling with the realization
that O[...] deceived the family into supporting her , unaware that she
was responsible for their deaths. Lizzy Brown , who raised O[...] in
Rustenburg, is deeply saddened by the loss , and Mr. Brown has
also been affected , receiving psychological and psychiatric
treatment at Legae Private Clinic for depression.
Arguments by the parties
Accused 1
[9] Personal circumstances should be taken into consideration. This
should Also be with a measure of mercy. The court will have to assess as
to whether he can be re - engaged. Can he be rehabilitated. He was
assisting as a driver . He contributed. his participation. His capability to
resist peer pressure . The court is granted discretion where the deviation
from minimum sentence can be ordered. Counsel agrees that there are
aggravating circumstances. The substantial and compelling circumstances
are those where the injustice will be done if the court does not consider the
cumulativeness thereof. Therefore, If the accused is sentenced to
rehabilitation, it may be on the basis that rehabilitation is feasible , given
that the accused has not re-offended. The accused agrees that no
sentence imposed today can match the pain the S[...] family is enduring .
Counsel indicated the following in respect of the sentence for the accused;
5 years ' imprisonment on Count 1 . Count 2 -5; 15 years ' imprisonment,
count 6; 10 years' imprisonment, count 7; 5 years' imprisonment and count
8; 3 years' imprisonment. Section 280 on count 2 to count 8 to run
concurrently. The sentence of 20 years of which 5 years suspended for 1O
years.
Accused 2
[10] The court should impose the shortest number of years. The offences
are heinous. The court should impose section 77(4)(a) of the child justice act.
Accused 3
[11] The accused influenced one another. They did not have a foresight in
committing their offences. The issue of youthfulness and first offender . There
is no need to make distinctions as far as the role is concerned.
The state
[12] They did not show any remorse . The ultimate impact is that there
are no compelling circumstances. The suggested sentences proposed by
counsel for accused 1 amounts to a mere s lap on the wrist. The
viciousness of his deeds exceeds the youthfulness immaturity . Taking into
account Matjitjt's case accused 1 and 3 minimum sentences should be
imposed. Accused 2' actions were of serious in nature . This is a matter of
utmost seriousness , involving the tragic events and criminal acts
committed by the accused. These accused have been found guilty on the
above counts, and the power to impose a sentence on a convicted
offender is the domain of the courts. In S v Tsotetsi5 Myburgh AJ said that:
'(a) The sentence must be appropriate, based on the circumstances
of the case. It must not be too light or too severe.
(b) There must be an appropriate nexus between the sentence
and the severity of the crime; full consideration must be given to
all mitigating and aggravating factors surrounding the offender.
The sentence should thus reflect the blameworthiness of the
offender and be proportional. These are the first two elements of
the triad enunciated in S v Zinn [1969 (2) SA 537 (A)].
(c) Regard must be had to the interests of society (the third element
of the Zinn triad). This involves a consideration of the protection
society so desperately needs. The interests of society are reflected
in deterrence, prevention, rehabilitation and retribution.
(d) Deterrence, the important purpose of punishment , has two
components, being both the deterrence of the accused from
reoffending and the deterrence of would-be offenders.
(e) Rehabilitation is a purpose of punishment only if there is the
potential to achieve it.
(f) Retribution, being a society 's expression of outrage at the
crime, remains of importance. If the crime is viewed by society as
an abhorrence, then the sentence should reflect that.
Retributions also expressed as the notion that the punishment
must fit the crime.
(g) Finally, mercy is a factor. A humane and balanced approach must
be followed.'
5 2019 (2) SACR 594 (WCC) at [29]
[13] In relation to accused 2 who was a child at the time of commission of the
offences section "69 lays down the Objectives of sentencing and factors to be
considered;
69(4) When considering the imposition of a sentence involving
imprisonment in terms of section 77, the child justice court must
take the following factors into account:
(a) The seriousness of the offence, with due regard to - (i) the
amount of harm done or risked through the offence; and(ii) the
culpability of the child in causing or risking the harm;
(b) the protection of the community;
(c) the severity of the impact of the offence on the victim;
(d) the previous failure of the child to respond to non -
residential alternatives , if applicable; and (e) the desirability
of keeping the child out of prison."
Further Section 77(3)(a) of the Child Justice Act 75 of 2008, which
reads:
77 (3) A child who is 14 years or older at the time of being
sentenced for the offence may only be sentenced to imprisonment ,
if the child is convicted of an offence referred to in-
(a) Schedule 3;
(4) A child referred to in subsection (3) may be sentenced
to a sentence of imprisonment-
(a) for a period not exceeding 25 years;
(5) A child justice court imposing a sentence of imprisonment
must take into account the number of days that the child has spent
in prison or a child and youth care centre prior to the sentence being
imposed. It is indeed so that Section 77 (5) of Child Justice Act
(CJA) provides that : "A child justice court imposing a sentence of
imprisonment must antedate the term of imprisonment by the
number of days that the child has spent in prison or child and youth
center prior to sentence being imposed"
Section 28 (g) of the Constitution provides
(g) a child should not be detained except as a measure of last
resort, in which case, in addition to the rights a child enjoys under
sections 12 and 35, the child may be detained only for the shortest
appropriate period of time."
[14] In assessing the personal circumstances of the three accused , the
gravity of their offenses, the interests of society, and the significant impact
on the victims must all be carefully considered in determining an
appropriate and just sentence.
1. Personal Circumstances of the Accused
• Accused 1: Tumelo Omphile Mokone (25 years old 18 years
old at the time of the crime)
• He has no prior convictions and comes from a family where
his biological father is absent. However, he has a loving relationship
with his stepfather. He enrolled in an N2 in Rose Tech college
doing mechanical engineering. He was unemployed , though he
helped out with the family business . His family describes him as a
loving and considerate person.
• Of Significance: Accused 1 is an adult with some level of family
support and no prior criminal history , which could be viewed in his
favour as a mitigating factor. However, he has to show substantial
and compell ing circumstances for the court to deviate from the
minimum sentence.
• Accused 2: O[...] S[...] (24 years old, 15 years o ld at the
time of the crime)
• Accused 2 was a minor when the offences were committed .
Her family's murder, left her without any immediate relatives. She
became involved in substance abuse , using marijuana and crystal
meth. Despite completing Grade 12 , she was unemployed . she
had been in custody for two years awaiting finalization of this case.
She claims to have been traumatized by the loss of her family but
did not fully cooperate with rehabilitation programs.
• Of Significance: As a minor at the time of the offence, accused
2's sentencing will be guided by the Child Justice Act , which
prioritizes rehabilitation over punishment. He r vulnerability as a
child at the time, combined w ith her troubled background and
substance abuse, will play a significant role in her sentence.
• Accused 3: Kagiso Lawrence Mokane (25 years old and 18
at the time of crime)
• Like Accused 1, Accused 3 has no prior convictions. He has a
girlfriend who is expecting a child . His personal circumstances show
a sense of responsibility , as he cared for his younger sister while
their mother worked as a domestic worker away from home during
the week . He was employed as an operator , earning R1,800 per
week, which suggests he was trying to support himself financially.
• Of Significance: Accused 3's age , lack of prior convictions, and
sense of familial responsibility may mitigate his sentence, though,
as an adult, he faces more serious consequences under the
minimum sentencing and would have to show substantial and
compelling circumstances for the court to deviate from minimum
sentence.
2. Seriousness of the Offence
The gravity of the crimes committed by all three accused cannot be
overstated. The murder of four individuals , including two pa rents
and two children , constitutes a heinous and grievous act of
violence. The fact that accused 2, a family member, was complicit in
the murder of her own parents and siblings where her sister was
eight months pregnant adds an element of betrayal and emotional
devastation that heightens the seriousness of the crime.
Additionally, the crimes involved theft , robbery with aggravat ing
circumstances where a motor vehicle was taken , and possession of
illegal firearms and ammunition. These acts collectively constitute a
grave threat to public safety , making the offences particularly
severe.
• Aggravating Factors : The premeditated nature of the
murders, the use of a firearms , and the involvement of a minor as
the master mind in these crimes significantly aggravate the
seriousness of the offences.
3. Interest of Society
The societal interest in this case is twofold:
• Punishment and D eterrence: Society e xpects that
those w ho comm it violent and premeditated crimes,
particularly crimes as serious as murder and robbery,
will face severe punishment.
This serves to deter similar conduct and reinforces the
principle that unlawful acts will be met with appropriate
consequences.
• Rehabilitation: In the case of accused 2, society has an
interest in seeing young offenders rehabilitated,
particularly those who were minors at the t ime of their
crimes. The Child Justice Act emphasizes the need to
reintegrate young offenders back into the society, with
the hope that they can lead productive and law
abiding lives.
The community's interest also demands that law-abiding citizens should
feel safe in their homes and that the justice system is perceived as fair,
both in terms of holding criminals accountable and in offering those
deserving a second chance.
4. Impact on the Victims and Their Families
The impact on the victims' families has been devastating. The S[...]
family's victim impact statement reveals profound grief , trauma, and
betrayal. Family members have struggled with mental health issues,
including depression and anxiety, stemming from the brutal murder of
their relatives . The fact that accused 2, a member of the family,
actively participated in the killings only intensifies their pain.
• Emotional and Psychologi cal Damage: The surviving family
members have suffered emotionally and psychologically. Several
have sought psychiatric help , with all family members suffering
from depression due to the knowledge that their relative , O[...], was
involved in the crime.
• Betrayal and Trust Issues: The trust that the family placed in
accused 2, only to find out that she was complicit in the murder,
has left deep emotional scars. This betrayal has caused immense
emotional conflict and has led to feelings of anger , confusion, and
heartbreak within the family.
[15] In weighing the personal circumstances of the accused against the
seriousness of the crime, society's interests, and the impact on the victims,
it is clear that the punishment must be just and proportional to the crime.
The court must balance these factors carefully, ensuring that society's
need for justice and deterrence is met, while also considering the
possibility of rehabilitation of the accused, particularly for accused 2. The
severe nature of the offence, the overwhelming harm caused to the victims,
and the societal demand for accountability must be weighed alongside the
mitigating personal circumstances of each accused . This court faces the
critical task of imposing sentences that serve the interests of justice while
acknowledging the personal factors that will warrant leniency in certain
cases.
[16] Accused 1 and 3 were young offenders as they were still 18, at
the time of committing the offence, the court will consider this as a
mitigating factor . A person who is just over 18 may still be considered
relatively immature and capable of rehabilitation , thus warranting a
deviation from the minimum sentence . However, through the
assessment of facts of the case it is evident that the immaturity played
no role and that the accused showed no remorse for what they have
done. They showed meticulous planned robbery and murder. That's
why they had to have a firearm which is a dangerous weapon to show
that they are even ready to use the firearm in case of need. And that's
what they did. All these accused did not show remorse nor capability for
rehabilitation. Counsel for accused 1 said that because accused 1 did
not reoffend when he was out on bail then he is a candidate for
rehabilitation. The court should assess the personal circumstances of
accused 1 holistically in order to find that he might be rehabilitable.
[17] There has been no evidence that shows that the immaturity played a
role. Accused 2 did not cooperate during psychological counselling which
role. Accused 2 did not cooperate during psychological counselling which
was a first step towards rehabilitation. However , the court will take into
consideration that accused 2 ( O[...] S[...] ) was a minor (15 years old) at
the time of the offence, and as such, she would be sentenced -under
section 77 of the child justice act.
1. First-Time Offenders:
o Where an accused is a first-time offender with no previous
convictions, the court may take this into account as a mitigating
factor. The lack of a prior criminal record suggests that the accused
may be less likely to reoffend, and therefore, a lighter sentence might
be more appropriate.
o Both Accused1, 2, and 3 are first-time offenders, which
may be considered strong mitigation in favour of the accused.
2. Personal Circumstances:
o Social and Family Background : If an offender grew up in
difficult or dysfunctional family circumstances , the court may take this
into account. For example, if the offender experienced abuse ,
neglect, or extreme poverty, it could mitigate the sentence.
o Accused 1 had an absent biological father, and though he had a
supportive stepfather, the lack of a relationship with his biological parent
might be a mitigating factor. However, these circumstances are often
insufficient on their own unless combined with other mitigating factors .
Accused 2 grew up in a stable family. Accused 3 grew up with only a
mother and an absent father.But that did not become a problem for him,
he started working and supporting himself.
3. Mental or Emotional State:
o An offender's mental health, emotional state, or trauma at the
time of the offence could be substantial and compelling. This
includes factors like mental illness, extreme emotional distress, or
trauma.
o Accused 2 claims to have been traumatized by the loss of her
family, which may be a significant factor in her emotional and
psychological state leading up to the offence. However, her lack of
cooperation in counselling might affect the weight the court gives to
this argument.
4. Minor or Lesser Role in the Crime:
o It has been factually established that all three accused actively
planned the occurrence of this offences. Even on the date of the
offence all three participated. Accused 2 opened the gate accused 1
and 3 entered the yard.
Accused 1 waited at the car and accused 3 entered into the house
and killed the people while accused three pretended to be busy
outside when the deed was complete then accused 1 drove the car
away together with accused 3. They all equally participated.
5. Rehabilitation Potential:
o All the accused do not show genuine remorse or
demonstrates a strong potential for rehabilitation , as a result this
has an influence on the reason for not deviating from minimum
sentence or rehabilitation of the minor. Accused 2 could not
cooperate when the family wanted her to undergo counselling as a
result it is doubtful if accused 2 will be rehabilitated as stated under
the Child Just ice Act. Accused 1 and 3 's family circumstances
cannot be taken as substantial and compelling circumstances such
that they could be presented as signs of potential rehabilitation in
order to deviate from minimum sentences.
Interest of Justice and Society
[18] While these personal circumstances of the accused may be
present, the court must also cons ider whether a deviation from the
minimum sentence based on such personal circumstances of the accused
serves the interests of just ice. The seriousness of the crime, societal
interest in deterrence , and the profound impact on the victims will
sometimes weigh heavily depending on facts of each case. In particular ,
this was heinous offen ces, so however strong the personal mitigating
factors of the accused may be they are not enough to justify a departure
from the minimum sentence . In this regard the fact that accused 1 and 3
were youn g when these offences occurred as compared to the
seriousness of the offence, the youthfulness will take the back seat. Their
family plight will also tak e a back seat. The fact that they are first time
offenders will also take a back seat. Accused 1 and accused 3 are first -
time offenders with clean criminal records , and their youth and family
responsibilities might be argued as mitigating facto rs. However, given the
gravity of the crimes (involving premeditated murder and robbery), the court
will have to carefully assess whether these personal circumstances are
sufficient to deviate from the prescribed minimum sentences. The court did
not find substantial and compelling circumstances to deviate from the
minimum sentences.
[19] Accused 2 ( O[...] S[...] ): Being a minor at the time of the offence
automatically places her outside the strict application of the minimum
sentencing act , as the Child Justice Act will govern her sentencing. Her
age, potentially for rehabilitation, and possibly the trauma she experienced
might provide grounds for leniency and her sentence will be in terms of
section 77(3) and (4) of the child justice act.
[20] The following sentences are imposed;
1. Accused 2
Count 1 ,7 and 8 are taken together for purpose of sentence. The
child is sentenced to 5 years' imprisonment.
Count 2-5 are taken as one for the purpose of the sentence. The child
is sentenced to 25 years' imprisonment.
Count 6 the child is sentenced to 10 years' imprisonment:
In terms of section 77(5) of Act 75 of 2008 the sentence will be ante
dated to the date of 16 December 2021 when the accused was
arrested.
In terms of Section 280 (2) of Act 51 of 1977 the court directs that
the sentences imposed in respect of all these counts shall run
concurrently with the sentence on count 2-5.
2. Accused 1
Count 1, 7 and 8 are taken as one for the purpose of sentence and
the sentence is 5 years.
Count 2 -5 are taken as one for the purpose of sentence and the
sentence is life imprisonment.
Count 6 the sentence is 15 years' imprisonment.
In terms of Section 280(2) Act 51 of 1977 the court directs that the
sentences imposed in respect of all these counts shall run
concurrently with the sentence for life imprisonment.
3. Accused 3
Count 1, 7 and 8 are taken as one for the purpose of sentence and
the sentence is 5 years.
Count 2 -5 are taken as one for the purpose of sentence and the
sentence is life imprisonment.
Count 6 the sentence is 15 years' imprisonment.
In terms of Section 280(2) Act 51 of 1977 the court directs that the
sentences imposed in respect of all these counts shall run
concurrently with the sentence of life imprisonment.
[21] Auxiliary orders
Leave to Appeal accused 2
1. In terms of section 84 of Act 75 of 2008, your rights regarding
appeal are as follows:
1.1 You have the right to apply to this court to appeal
against the conviction and/or resultant sentence and/or order of
this court.
1.2 You may lodge the appeal personally or appoint a legal
representative for this purpose. If you cannot bear the costs of a
legal representative , you may apply to Legal Aid South Africa for
the appointment of a legal representative free of charge.
1.3 If you elect to note an appeal, you can apply to this court for
leave to appeal against the conviction and/or sentence and/or order
of the court immed iately or within fourteen (14) days . The period of
fourteen (14) days can be extended on request, but good cause will
have to be shown why the prescribed period should be extended.
1.4 Your application for leave to appeal must set forth clearly and
specifically the grounds upon which you wish to appeal. If you
verbally apply for leave to appeal immediately after the passing of
the decision or order you must state, the grounds upon which you
wish to appeal so that it can be recorded and form part of the
record.
Accused 1, 2, and 3
1. In terms of Section 103 (1) of firearms control act 60 of 2000 the
court makes no order. This means all the accused are deemed
unfit to possess a firearm.
2. In terms of section 103 (4) of firearms controls act 60 of 2000 .
The court makes an order of search and seizure of accused's
premises for firearms, ammunitions licenses and or competency
certificate.
3. In terms of section 299A (1) of Act 51 of 1977 the court informs the
complainants that they have a right to make representations to the
commissioner of the correctional services when placement of the
prisoner on parole is considered , to attend any relevant meetings
of the parole board, when the accused 's parole is to be decided .
This is subject to the directive issued by the commissioner of
correctional services under section 4 of the correctional services
Act.
4. accused 1 and 3 have the right to appeal the convictions
sentences which were imposed on them today . The accused may
request the assistance of legal aid attorneys or retain a privately
appointed attorney , at their own expense , to assist in bringing a
substantive application for leave to appeal the conviction and
sentence, to be filed within 14 days from the date of this sentence.
If the application is submitted later than fourteen (14) days, the
applicants must apply for condonation in order to seek an extension
of time to file the application for leave to appeal out of time.
M Munzhelele J
Judge of the High Court, Pretoria
Heard On: 22 October 2024
Delivered On: 22 October 2024
APPEARANCES:
For the State: Adv E. V Sihlangu
Instructed by: The National Director for Public Prosecutions
For the First Accused: Adv N Khoza
Instructed by: Private Counsel
For the Second and Third Accused: Adv O. K Matshego
Instructed by: Legal Aid South Africa