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[2013] ZAWCHC 119
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S v Makhakha (Sentence) (SS41/2012) [2013] ZAWCHC 119; 2014 (2) SACR 457 (WCC) (14 June 2013)
SS41/2012
11
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(
WESTERN CAPE HIGH COURT, CAPE TOWN
)
CASE NUMBER
: SS41/2012
DATE
: 14 JUNE 2013
In the matter between:
THE STATE
and
SANDISILE MAKHAKHA
...................................................................................
Accused
S E N T E N C E
BOQWANA, AJ
:
Sentencing requires balancing of all the relevant factors. The
starting point is the much quoted case of
S v Zinn
1969(2) SA
537 (A) at 540G-H where the Appellate division established the
triadic sentencing formula as follows:
“
What has to be considered is the triad
consisting of the crime, the offender and the interests of society.”
In
S v Banda and
Others
1991(2) SA 352 (BG) at 355A-B
and C the Court held the following:
“
The elements of the triad contain an
equilibrium and a tension. A Court should, when determining sentence,
strive to accomplish
and arrive at the judicious counterbalance
between these elements in order to ensure that one element is not
unduly accentuated
at the expense of and to the exclusion of the
others. This is not merely a formula, nor a judicial incantation; the
mere stating
whereof satisfies the requirements. What is necessary is
that the Court shall consider, and try to balance evenly, the nature
and
circumstances of the offence, the characteristics of the offender
and his circumstances and the impact of the crime on the community,
its welfare and concern.”
In appropriate circumstances a Court will also exercise a measure of
mercy. See
S v Rabie
1975(4) SA 855 (AD) and
S v Khumalo
1973(3) SA 697 (A) at 698 and
S v Sparks & Another
1972(3)
SA 396 (A) at 410A. The time spent by the accused in custody whilst
awaiting trial may also play a role depending on each
case. The
criminal record of the accused is also important and must be
considered together with other relevant factors. In evaluating
an
appropriate sentence the Court is also required to have regard to the
main purposes of punishment, namely its deterrent, preventative,
reformative and retributive aspects.
In this regard the state submits that the retributive object of
sentencing must get preference above the object of rehabilitation
in
the sense that the accused is convicted of extremely anti-social
conduct. Two persons lost their lives and a third one was fortunate
to escape from such a fate. Accordingly, no restitution is possible.
Starting with the personal circumstances of the accused. He is a
young man born on 16 June 1986. He was 21 years old when he committed
the offences of attempted rape and murder of Nozukile Ntshoze
(“deceased 1”), and robbery with aggravating
circumstances
and attempted murder of Phindiwe Cecilia Keswa
(“Keswa”)and 25 years old when he committed offences of
rape and murder
of Azavela Ziwele (“deceased 2”).
The accused is currently 26 years old to turn 27 in a few days. He
was unemployed when he got arrested in July 2011 whilst living
in
Balasi, Eastern Cape. During 2007 (when he committed the offences
against deceased 1 and Keswa) he however received some casual
employment in Atlantis
perlemoen
factory where he worked at
least once a week, when he was still residing in Gansbaai. For the
most part he however stayed at home
doing nothing. He testified that
both his parents are deceased and he was living with his brother
whilst in Gansbaai in 2007 and
with his sister in 2011 in Balasi. He
is not married and has no children. He passed grade 8 and did not
drink. The accused also
has no previous convictions. The accused did
not testify or call witnesses in mitigation of sentence. These
circumstances must
be weighed against other competing considerations,
with the context in which these offences took place as being a key
factor.
Turning to the seriousness of the crimes. The accused has been
convicted of very serious crimes. In the matter of
S v Tikini
2008(1) SACR 42 (EC), Plasket, J referred to a judgment of
S v
Stonga
1997(2) SACR 497 (O), where the appellant had been
convicted of raping and murdering an eight year old by strangling her
and then
dumping her body in a toilet.
In that case the accused was 25 years old and a first offender who
had cooperated with the police throughout. He had been sentenced
to
12 years imprisonment for the rape and life imprisonment for the
murder. It had apparently been argued in an appeal against
the
sentence of life imprisonment that the trial Court had overemphasised
the interest of society at the expense of personal circumstances
of
the appellant.
Plasket, J agreed with the reasons in the
Stonga
case (at
501a) that the remorse that the appellant had shown when viewed
against the callousness of his conduct paled in its significance
as a
mitigating factor. He concluded that the personal circumstances of
the accused in the
Stonga
case were not weighty enough to
justify deviation from the minimum sentences imposed by the Act and
had to bow to the interest
of society, particularly if one has regard
to the brutality involved and the callous way in which those offences
were committed.
Here there appears to have been some planning of the attacks,
involving vulnerable young women who were alone whom the accused
targeted and isolated into the bushes where he attacked them. He
repeated this conduct over a period of four years and it had deadly
consequences for his victims, except in one instance where one of the
victims was rescued.
Turning to the interests of society. The interests of the society
cannot be ignored in cases like these. Our country is ravaged
with
acts of violence and abuse against women and children every day and
many of which lead to the death of helpless victims.
The remarks of the SCA in
S v Chapman
1997(3) SA 341 (SCA) at
344J-345B are worth repeating:
“
Rape is a very serious offence constituting
as it does a humiliating, degrading and brutal invasion of the
privacy, the dignity
and the person of the victim.
The rights to dignity, to privacy and the integrity of every person
are basic to the ethos of the Constitution and to any defensible
civilisation.
Women in this country are entitled to the protection of these rights.
They have a legitimate claim to walk peacefully on the streets,
to
enjoy their shopping and their entertainment, to go and come from
work and to enjoy the peace and tranquillity of their homes
without
the fear, the apprehension and the insecurity which constantly
diminishes the quality and enjoyment of their lives.”
In a case where the brutality and callousness of the murder was such
that the deceased, a defenceless old man, was trussed up and
simply
left to die, and an old lady raped, the SCA in
DPP v Thusi
(769/10)
[2011] ZASCA 176
, (29 September 2011) found that there were
no substantive and compelling circumstances justifying deviation from
the minimum sentence
prescribed. The Court held in paragraph 19 of
the
Thusi
case that when weighed against the objective gravity
of these offences (which were rape and murder of the elderly in that
case),
their prevalence in South Africa and the legitimate
expectation of society that such crimes must be severely punished,
neither
the youthfulness of the respondent nor the prospects of
rehabilitation tip the balance in their favour. In that case one of
the
accused was 20 years old, unmarried and a first offender. In that
case the Court found that none of the respondents (the accused
in
that case) demonstrated immaturity, nor was it evident that any one
of them was subjected to peer or undue pressure by one or
both of the
others. On the contrary, their conduct showed a brutality that was
quite inconsistent with immaturity. The trial Court
was found to have
overemphasised personal interests of the respondents over the
seriousness and prevalence of the offences, the
interest of the
society and the harm suffered by the raped victim and by the family
of the deceased. The appeal Court found that
there were no
substantial and compelling circumstances and it overturned a sentence
of 15 years imprisonment for murder and 18
years for rape and imposed
life imprisonment on both the rape and murder charges.
The accused in this case has showed no remorse whatsoever for his
actions. He remains adamant that he did not commit these offences,
in
the face of overwhelming evidence against him. There has been no
attempt to explain his actions at all, except a bare denial
and a
repeated statement that he was not there but sitting at home the
whole day.
Turning to the individual counts and dealing with counts 1 and 2. The
right to life is a fundamental right in our Constitution,
and the
accused violated that right. The senseless killing of the victim who
was pregnant by strangling and being buried in a shallow
grave
deprives her husband and the family of the enjoyment and pleasure of
raising their unborn child. This unborn child’s
prospect of
life was brutally taken away by murderous person who refuses to take
responsibility for his actions.
This unborn child could have become a productive member of the
society. Dr Potelwa testified that no abnormality was detected from
the foetus, therefore the unborn child would have been born alive and
in normal health in all likelihood. The impact this has had
on
deceased 1’s husband is unimaginable in light of the fact that
he and his deceased wife had previously lost a child. These
actions
demand no less than long term imprisonment. Similarly the killing of
both deceased 1 and 2 deprived their families of the
opportunity to
share in their potential achievements and to watch them grow up.
Deceased 1 was only 22 years old when she died.
The post-mortem
report shows that the killing was brutal in that her hyoid bone
broke. She had a dotted eye and a protruding tongue
with blood spots
in her tongue and neck indicative of the amount of force and pressure
used to strangle and kill her.
In respect of count 1, general principles of sentencing are
applicable. In respect of Count 2 the provisions of section 51(1) of
the Criminal Law Amendment Act, Act 105 of 1977 read with Part 1 of
Schedule 2 of that Act, a minimum sentence of life imprisonment
is
prescribed in an instance where the death of the victim was caused by
the accused in committing an offence of rape.
Counts 3 and 4. Keswa was walking alone and minding her own business
when the accused came from behind and attacked her. The accused
did
not listen to her pleas to stop his attack and to rather rape her. He
insisted that he wanted to kill her. He dragged her into
the bushes
and kicked her and she sustained injuries. He strangled her to the
point of unconsciousness. Had the unknown man not
rescued her she
probably would have died like the other two women. Keswa was
subjected to extreme trauma and fear.
Robbery with aggravating circumstances is rife in our society. It is
common knowledge that people get attacked for no reason. Keswa
was
evidently affected by the ordeal. This was very clear in court as she
became very emotional and cried while giving her evidence.
This was
an indication that the ordeal still affected her emotionally.
In the case of robbery with aggravating circumstances, count 3, the
provisions of the Criminal Law Amendment Act are applicable
and the
prescribed minimum sentence is 15 years imprisonment. In respect of
count 4, attempted murder will be dealt with in terms
of the general
principles of sentencing.
Counts 5 and 6. The post mortem report of Dr John estimated the body
of deceased 2 to be approximately 16 years of age. It has
however
transpired during the State’s address for sentencing and upon
the Court’s enquiry that deceased 2 was in fact
born on 25
March 1991 which makes her 20 years old at the time of the commission
of the crime according to her father’s affidavit
which the
State referred to. The Court was also furnished with a letter from
deceased 2’s father, Mziwandile Ziwele, which
was read into the
record before sentencing wherein Ziwele describes the impact his
daughter’s death has had on his family,
which included the
grandmother and him suffering sickness, a loss of concentration on
his part and loneliness felt by the living
daughter.
Ziwele appealed to the Court in his letter not to impose a lenient
sentence on the accused in that he is dangerous and does not
deserve
to be part of the community.
Deceased 2 was also strangled and according to Dr John it appears
that the bleeding on the soft tissues in the neck was possibly
due to
the application of blunt force in the neck. Accused was apparently
known to deceased 2 and he could have targeted her in
the bushes
whilst walking alone.
In terms of section 51(1) of the Criminal Law Amendment Act read with
Part 1 of Schedule 2 of the same Act, the minimum sentence
prescribed
in respect of rape as contemplated in
section 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
, involving
infliction of grievous bodily harm, is imprisonment for life.
In terms of section 51(1) of the Criminal Law Amendment Act read with
Part 1 of Schedule 2 of that Act the minimum sentence is
imprisonment
for life when the death of the victim was caused by the accused in
committing the offence of rape. The defence has
referred the Court to
the case of
S v Willemse
2011(2) SACR 531 at page 539,
paragraph 25 as a case to be considered in relation to the conviction
of rape as a consideration
to deviate from the minimum sentence
prescribed but no submissions in this regard were made in relation to
murder and other counts.
The defence however requested the Court to
have regard to the personal circumstances of the accused in respect
of all the counts.
The Court has considered the circumstances of the
Willemse
case and it has found that that case is
distinguishable from this case.
Willemse
dealt with two counts
of rape committed on one complainant which followed closely upon one
another, i.e. on her vagina and her
anus. The Court found in that
case that there were substantial and compelling circumstances, having
regard to the nature of the
offences, which in its view could have
been treated as one. This case however involves serious grievous
bodily harm inflicted upon
the victim with strangulation causing her
death. The rape charge cannot be viewed in isolation. It must be
viewed in the context
in which the offence on the deceased was
committed which was violent and brutal. Therefore, the youthfulness
of the accused, the
clean record and other factors submitted cannot
justify deviation from minimum sentence in the context of counts 5
and 6 or all
counts for that matter.
In conclusion the Court must emphasise what was said in
S v Malgas
[2001] 3 All SA 220
(A) at para [25], where the Court held the
following:
“
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.”
Having taken into account all factors discussed above and even the
time spent by the accused in custody pending finalisation of
the
trial, the Court is of the view that there are no substantial and
compelling circumstances warranting deviation from the minimum
sentences prescribed in respect of counts 2, 3, 5 and 6.
As regards counts 1 and 4 and the context in which those crimes
occurred the Court has considered other sentencing options and
found
that direct imprisonment would be the only appropriate sentences in
respect of these offences.
The accused is accordingly sentenced as follows:
IN RESPECT OF COUNT 1 OF ATTEMPTED RAPE - A TERM OF 8 (EIGHT)
YEARS IMPRISONMENT. IN RESPECT OF COUNT 2 OF MURDER - A TERM OF LIFE
IMPRISONMENT. IN RESPECT OF COUNT 3 OF ROBBERY WITH AGGRAVATING
CIRCUMSTANCES – A TERM OF 15 (FIFTEEN) YEARS IMPRISONMENT.
IN
RESPECT OF COUNT 4 OF ATTEMPTED MURDER - A TERM OF 10 (TEN) YEARS
IMPRISONMENT. IN RESPECT OF COUNT 5 OF RAPE - A TERM OF LIFE
IMPRISONMENT. IN RESPECT OF COUNT 6 OF MURDER - A TERM OF LIFE
IMPRISONMENT. IT IS ORDERED THAT THE SENTENCES ON COUNTS 2, 5 AND
6
OF IMPRISONMENT FOR LIFE SHALL RUN CONCURRENTLY. THE SENTENCES IN
RESPECT OF COUNTS 1, 3 AND 4 SHALL RUN CONCURRENTLY WITH THE
SENTENCE
OF LIFE IMPRISONMENT IMPOSED. IN TERMS OF SECTION 103 OF ACT 60 OF
2003, THE ACCUSED IS DECLARED UNFIT TO POSSESS A FIREARM.
THE
EFFECTIVE TERM OF IMPRISONMENT IS LIFE IMPRISONMENT.
___________________________
NP BOQWANA
ACTING JUDGE OF THE HIGH COURT
/LL /...