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[2019] ZASCA 83
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Director of Public Prosecutions v Moloto (1007/18) [2019] ZASCA 83; 2019 (2) SACR 123 (SCA) (31 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1007/18
In
the matter between:
THE
DIRECTOR OF PUBLIC
PROSECUTIONS APPELLANT
and
KHOLOFELO CHARMAINE
MOLOTO RESPONDENT
Neutral
citation:
The
Director of Public Prosecutions v Moloto
(1007/18)
[2019] ZASCA 83
(31 May 2019)
Coram:
Tshiqi, Majiedt and
Van der Merwe JJA
Heard:
15 May 2019
Delivered:
31 May 2019
Summary:
Criminal Procedure – sentence for murder, read
with
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
–
unclear from judgment whether the trial court found substantial and
compelling circumstances justifying deviation from
prescribed minimum
sentence – sentence in terms of
s 276(1)(i)
of Act 51 of 1977
set aside and substituted with a sentence of 10 years' imprisonment.
ORDER
On
appeal from
:
Limpopo Division of the High Court,
Polokwane (Makgoba J sitting as court of first instance):
1 The appeal is
upheld
2 The sentence
imposed by the trial court is set aside and substituted as follows:
‘
(a) The
accused is sentenced to 10 years imprisonment
(b) The sentence
is antedated to 7 March 2017’
JUDGMENT
Tshiqi
(Majiedt and Van der Merwe JJA concurring):
[1]
The respondent, Ms Kholofelo Moloto, was charged in the Limpopo
Division of the High Court, Polokwane, with two counts of murder,
read with s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the
Minimum Sentences Act). In count 1 it was alleged that on
3 June 2014
and at Ga-Semenya village in Seshego, the respondent unlawfully and
intentionally killed Florence Gwenya Moloto, an
adult female person.
In count 2 it was alleged that on the same date and place the
respondent unlawfully and intentionally killed
Elna Tintswalo Pele, a
young girl aged 5 years. The deceased in count 1 was the respondent’s
grandmother and the deceased
child (count 2) resided with the
respondent’s grandmother. The respondent pleaded guilty to
count 1 and tendered a statement
in terms of s 112(2) of the Criminal
Procedure Act 51 of 1977 (the
Criminal Procedure Act), in
terms of
which she admitted all the elements of the offence. Regarding count
2, she pleaded not guilty and the state led the evidence
of her
co-conspirator, Mr Frans Baloyi, who was her boyfriend at the date of
the commission of the offences. She was convicted
on count 1 but
acquitted on count 2, and was sentenced to 5 years’
imprisonment in terms of
s 276(1)(i)
of the
Criminal Procedure Act.
The
appellant, the Director of Public Prosecutions, appeals against
the sentence, with the leave of this court.
[2]
The respondent recounted the circumstances of the murder in her
s
112(2)
statement as follows: Before the date of the murder she
had been ill for quite some time and her health was not improving.
She consulted two traditional healers on the advice of Mr Baloyi and
both traditional healers told her that she was being bewitched
by her
grandmother, the deceased in count 1. The second traditional healer
further told her that she would die soon. As she believed
in
witchcraft, she got frustrated and scared. She discussed this
diagnosis with Mr Baloyi, and requested him to assist her in killing
the deceased.
[3]
On 2
nd
June 2014 Mr Baloyi went to the deceased’s home with the
intention to kill her, but did not do so as he found the deceased
in
the company of two other women. This did not deter the respondent.
The following day she accompanied Mr Baloyi to the deceased’s
home and found her in the presence of the child, the deceased in
count 2. They sat in the dining room waiting for the grandmother
and
the child to go to their respective bedrooms to sleep. At some stage
during the course of the evening, after the grandmother
had gone to
her bedroom, Mr Baloyi followed her into the bedroom and strangled
her. At this time the respondent took the child
to a different room,
apparently to protect the child from witnessing the murder. The
respondent then went to the grandmother’s
bedroom and found Mr
Baloyi strangling the deceased. Mr Baloyi invited her to join him,
but when she came close to them she realised
that the grandmother was
already dead. She touched her and shook her and was satisfied that
she was dead. Mr Baloyi suggested that
they should also kill the
child as she might have witnessed the killing of the grandmother. She
refused and said that she did not
want to kill a child. Mr Baloyi
went to the room where the child was sleeping and killed her, also by
strangulation. He moved the
child’s body to the grandmother’s
bedroom, covered both bodies with blankets and they left the scene.
[4]
The respondent testified in mitigation of sentence and presented the
following personal circumstances, which were considered
by the court
during sentencing proceedings. She was 26 years old at the time of
the commission of the offence and 29 on the date
of the sentencing.
The respondent’s highest qualification was grade 11. She was
unmarried and had a child of her own, who
was eleven years old and
who stayed at the respondent’s parental home (with the
respondent’s mother). She was gainfully
employed, earning a
salary of R3 500 per month. She was assisted towards the maintenance
of the child by the child’s father,
although not on a regular
basis. Regarding her relationship with the deceased, she testified
that she was her paternal grandmother.
The respondent grew up at the
deceased’s home and the deceased assisted the respondent’s
mother in raising her from
a young age as her father passed away when
the respondent was still young. She left the deceased’s home
after she heard about
the witchcraft allegations. Whilst they were
staying together they got along well, but had minor differences as
the deceased did
not approve of the respondent’s friendship
with one Lenny. On one occasion the deceased threatened to kill her
if she did
not disassociate herself from ‘those people’.
She was asked how the deceased threatened to kill her and she said
that
the deceased had said that ‘she does not buy herbs’.
This apparently suggested that she had the capacity to bewitch
her.
When she was asked by the court if she still believed in witchcraft
she said: ‘I do slightly believe in it M’Lord’.
[5]
In imposing sentence, the court was satisfied that the accused indeed
laboured under the belief that her illness was as a result
of being
bewitched by the deceased. The court considered this to be a
mitigating factor. It also found that she was misled by the
traditional healers, but that she had since realised she was wrong
and was remorseful. The court then stated that it would have
imposed
a postponed sentence in terms of
s 297(1)
of the
Criminal Procedure
Act, had
this been a competent sentence for the offence, in order to
ensure that Ms Moloto did not serve a custodial sentence. The court
reluctantly considered itself ‘with no option but to resort to
the provisions of section 276(1)(i) of the
Criminal Procedure Act
because
the court did ‘not agree with the state advocate’s
submission that the accused deserved to go to imprisonment [prison]
for a long time.’
[6]
It is well established that sentencing is pre-eminently within the
discretion of the trial court, but it is also trite that
a court of
appeal may interfere if the discretion has not been exercised
properly. A mere misdirection is not sufficient to entitle
the appeal
court to interfere with sentence; it must be of such a nature, degree
or seriousness that it shows, directly or inferentially,
that the
court did not exercise its discretion at all, or exercised it
improperly or unreasonably (See
S
v Pillay
1977 (4)
SA 531
(A) at 535 E-F).
[7]
The respondent was charged with murder, read with the provisions of s
51(1) of the Minimum Sentences Act. A minimum sentence
of life
imprisonment was applicable, by virtue of the fact that the
respondent was convicted of a premeditated murder as envisaged
in
Part 1 of Schedule 2 of the Minimum Sentences Act. The court was
obliged to impose the minimum sentence of life imprisonment,
unless
it found substantial and compelling circumstances that justified a
deviation from the prescribed minimum sentence. In its
judgment the
trial court did not state whether there were any factors it
considered to be substantial and compelling circumstances
to justify
such deviation. The failure to embark on this exercise was a clear
misdirection as this court is now in the dark as
to why the
prescribed minimum sentence was not imposed. (See
S
v Malgas
2001 (1)
SACR 469
(SCA) at 477 para 9). The misdirection is of such a nature
that this court is justified in setting aside the sentence imposed by
the trial court, assess the evidence afresh to determine whether
there are any substantial and compelling circumstances and impose
a
sentence afresh.
[8] I consider the following to be
aggravating circumstances. The s 112(2) statement shows that the
murder was premeditated. The
first respondent requested her boyfriend
to murder the deceased. After discovering that her boyfriend did not
kill her grandmother
on the first occasion, the respondent was
undeterred. Instead, she arranged to accompany him the very next day,
possibly to ensure
that this time her plan would materialise. On
arrival at the grandmother’s home, they watched TV waiting for
an opportune
time to attack. Even on this occasion, their consciences
still did not deter them. They proceeded to kill the deceased in her
own
bedroom, whilst her grandchild was in another room in the same
house. The deceased died a painful death through strangulation by
people she knew and trusted. It is clear that the respondent and her
boyfriend were able to gain entry in the house because her
grandmother trusted her. In killing her she breached this trust. She
also abused the child’s trust by pretending to take
her to her
bedroom to sleep whist she knew that she had arranged for their
grandmother to be killed.
It is also concerning
that although the respondent assured the court that she regretted
what she did, when she was asked by the
court whether she still
believed in witchcraft, she said that she did still did, ‘lightly’.
[9] An
additional factor requiring strong condemnation is the fact that the
deceased had done nothing to the respondent, but lost her
life on the
basis of unsubstantiated allegations of witchcraft. Whilst it may be
accepted that the respondent was so ill and desperate
that she
believed what she was told by the traditional healers, it is the task
of the courts to deter people from taking the law
into their own
hands and killing innocent people on the basis of such allegations. A
strong message has to be sent to the communities
who still continue
with these practices that such conduct will receive the strictest
punishments prescribed in terms of the law.
[10]
In
S
v Phama
1997 (1) SACR 485
(E) the accused had shot and killed his
neighbours after being told by a traditional healer that they were
responsible for his
sister’s death, who had died as a result of
complications resulting from injuries sustained in a motor vehicle
accident.
The personal circumstances of the accused, the reason for
the killing, and the fact that he came from a stable family with a
strong
support system led a social worker from the Department of
Correctional Services to recommend correctional supervision. The
court
accepted that he was a candidate for correctional supervision
but was not willing to overlook the other important considerations
that should be taken into account in deciding upon a balanced and
proper sentence, namely: the seriousness of the offence, and
the
interests of society. The court held as follows at 487C-F:
‘
I
cannot overlook the question of retribution and the need to do
justice to the victims as well as the offender; and the question
of
deterrence, the prevention of crime, and the protection of society.
If I should do so, my sentence would not be proportionate
and
balanced. I would fail in my duty to society. I cannot overlook the
fact that two innocent people were deliberately and needlessly
done
to death. . . . The victims gave no provocation. They committed no
wrong to the accused or his family. They were not witches.
. . .
Nothing can undo the dreadful wrong that has been done to them.
Society demands that they, too, be given justice. Society
demands
that other people like them should not suffer the same fate. The
deterrent and preventative elements of criminal justice,
and also,
but not to the same extent, the retributive element, require that my
sentence should reflect the revulsion of society
at the readiness to
resort to criminal violence; the horror of society that human life
should be made so cheap; and the need to
show the accused and other
potential offenders that the price they must pay for resorting to
murder in order to eliminate an alleged
witch or wizard from their
midst is not worth it.’
In
Mogaramedi
2015(1) SACR 427
(GP) the court said at para 25:
‘…
Cultural
and religious beliefs must respect life and must be practiced in line
with the Bill of Rights….’
It continued in para 35:
‘
Bearing
in mind the strong cultural belief surrounding traditional healers
and the fact that muti killings are unlikely to stop
in the future,
it is the task of this court to deter the killing of innocent people
for such purposes. The community must be protected.
The aspect of
general deterrence is important to restore the trust the community
[has] in the justice system. To regard such killings
as substantial
and compelling circumstances would send out the wrong message to the
community. The prevalence of such cases in
South Africa is high
.
The continuation of such killings will create more instability in the
communities where such practices are rife. A strong message
must be
sent out that such conduct will not be condoned in a civilised
society. Where such killings arise they must be punished
with the
full strength of the law.’
(Footnotes
omitted.)
[11] In this
matter I am prepared to accept, as the trial court did, that the
respondent believed in witchcraft and that after she
consulted the
second traditional healer, she thought that her life was in danger.
She testified that in the past, during a disagreement
with the
deceased, the latter had threatened to kill her. She seems to have
believed this. After she was diagnosed by the traditional
leaders she
left the deceased’s home, apparently in fear or because of a
lack of trust in the deceased. I am prepared to
accept these factors
as mitigating factors. I am also willing to find that these factors,
when considered cumulatively with the
respondent’s personal
circumstances, constitute substantial and compelling circumstances
justifying a deviation from the
prescribed minimum sentence. In the
heads, Counsel for the appellant recommended the imposition of a
sentence of 10 years’
imprisonment. When the fact that the
respondent has already served a period of 10 months in prison is also
taken into consideration,
that appears to me to be a fair, balanced
sentence.
[12] I make the
following order
:
1 The appeal is
upheld
2 The sentence
imposed by the trial court is set aside and substituted as follows:
‘
(a) The
accused is sentenced to 10 years imprisonment
(b) The sentence
is antedated to 7 March 2017’
_______________
Z L L Tshiqi
Judge
of Appeal
APPEARANCES:
For
Appellant:
N C Molepo (with him M P Mudau)
Instructed
by:
Director of Public Prosecution, Polokwane
Director
of Public Prosecution, Bloemfontein
For
Respondent:
L M Manzini
Instructed
by:
Legal Aid, Polokwane
Legal
Aid, Bloemfontein