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[2014] ZAWCHC 6
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S v Peters and Another (SS17/2013) [2014] ZAWCHC 6 (5 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: SS17/2013
DATE:
05 FEBRUARY 2014
Before:
The Hon. Mr Justice Binns-Ward
sitting
with an assessor
In
the matter between:
THE
STATE
And
GARY
PETERS
.......................................................
Accused
No. 1
MOEGAMAT
SHAFIEK MINNIES
........................
Accused
No. 2
SENTENCE
JUDGMENT DELIVERED 5 FEBRUARY 2014
BINNS-WARD
J:
[1]
Accused no. 1, Mr Gary Peters, has been found guilty of the unlawful
possession of a firearm without a licence. His co-accused,
Mr
Moegamat Shafiek Minnies, has been found guilty of the murder of
Junaid McKenzie and the attempted murder of Mrs Leticia Jacobs,
as
well as the unlawful possession of a firearm and ammunition without a
licence. The circumstances in which the offences were
committed were
fully described in the conviction judgment delivered on 4 November
2013 and it is therefore unnecessary to retraverse
the facts at
length. Suffice it to say that the offences were committed in the
context of the gang-related violence which is,
and has for too long
been, a social scourge in the greater Cape Town metropolitan area.
[2]
It is firmly established that in determining upon an appropriate
sentence a court should have regard to the nature of the crime
or
crimes that the accused has committed, the interests of the community
- which includes matters such as victim impact, the need
for
punishment to contain an appropriate element of retribution to
sustain confidence in the effectiveness of criminal justice
and
affording some measure of deterrence, while also offering sufficient
opportunity for rehabilitation and reform for the offender
if the
accused is amenable thereto – and the individual circumstances
of the accused. These considerations are commonly
referred to as the
'Zinn triad’ after the often quoted decision of the late
Appellate Division that authoritatively confirmed
them to be the
relevant compass points, S v Zinn
1969 (2) SA 537
(A).
[3]
The offences of which the accused have been convicted were grievous
crimes, particularly in the case of accused no. 2. Their
commission
in the context of the social evil of gangland violence is an
aggravating factor. The effect of that violence on innocent
individuals in poor communities on the Cape Flats has been
graphically illustrated by the facts of this case. A young boy of
just eight years of age was killed by a bullet through his head while
playing with a football on the pavement outside his house
and a
housewife was struck down while walking nearby going about her
everyday personal business with her young teenage daughter.
[4]
The effect of the violence has lived on long after the event. The
family of the young child has suffered a grievous loss, from
which,
as apparent from the victim impact assessment report, it is clear
that they have not recovered and will probably haunt them
for the
rest of their lives. Tragically, violence appears to have been
attracted to their house because the young boy’s
elder brother
had become enmeshed in the gang culture, being a member of a rival
gang to that which accused no. 2, the shooter,
belonged. Accused 2
had proceeded to the area to wreak vengeance for shootings that the
rival gang had apparently carried out
in the area in which the
accused lived. The indiscriminate effect of the endemic violence is,
however, evident in the resulting
death and injury of innocents. Mrs
Jacobs and her daughter were traumatised so badly by their experience
that they do not feel
safe anymore, whether it be in their home or
going out on the streets. Mrs Jacobs endured surgery and the
inconvenience and indignity
of living with an open colostomy for
several months. She suffers pain and discomfort to this day and is
likely to do so for the
rest of her life. While it is important that
the court sees to it that the accused are not punished twofold for
the same offence,
the fact that the firearm and ammunition related
offences were committed in the aforementioned gang violence context
makes these
serious instances of the statutory offences involved.
[5]When
serious offences such as murder are involved, the personal
circumstances of the accused have to be subordinated to the public
interest in the imposition of appropriately severe sentences. The
prescribed minimum sentence legislation reflects the public
interest
in a standardised regime of severity in respect of certain offences,
including murder. The courts are bound to respect
this statutory
regime and to apply it within constitutional norms. The prescribed
sentences must be imposed unless there are compelling
and substantial
reasons not to do so and provided that in the given case the
prescribed sentence is not grossly disproportionate
to the
blameworthiness of the accused; cf. S v Matyityi
2011 (1) SACR 40
(SCA),
[2010] 2 All SA 424
, and S v Vilakazi
[2008] ZASCA 87
;
2009 (1) SACR 552
(SCA),
[2008] 4 All SA 396.
The public interest in the proper
administration of justice has been demonstrated in these proceedings
by the regular attendance
at court during the trial of members of the
victims’ families. They would certainly not feel that justice
had been done
if the personal circumstances of the accused were given
undue weight.
[6]
In the current matter the offence of murder of which accused no. 2
has been convicted carries a prescribed sentence of life
imprisonment.
[7]
The consideration that the personal circumstances of the accused
should not enjoy undue weight does not mean, however, that
they must
not enjoy appropriate consideration. A balanced approach is
indicated.
[8]
Accused no. 1 is a young man of 22 years. He was just short of 21 at
the time of the commission of the offence. He had a very
limited
education, leaving school before completing grade 6, apparently
because he had a learning disability, which is reported
to have been
the consequence of excessive alcohol consumption by his mother while
she was carrying him in the womb. He grew up
in straitened
circumstances in a crime ridden area and has never held fixed
employment. He has done odd jobs as a casual labourer
and as a
caddie. He also street-vended fruit and vegetables. He has been
using undesirable and dangerous dependence producing
drugs like dagga
and ‘tik’ (methamphetamine) since the age of 17, although
he claimed to the correctional services
officer who reported to the
court for sentencing purposes that he has ceased to do so. The
accused is a first offender. His involvement
in the incidents of 26
June 2012 was incidental, in that he had been invited by accused 2 to
tag along merely because he happened
to be noticed by the latter
while the group of Mongrels gang members of which accused 2 was part
set out from the flats in Lavender
Hill on its way to wreak violence
in the neighbouring suburb of Steenberg. The role that he has been
found to have played was
a minor one. He assisted in taking the
weapon used in the shooting away from the scene and back to Lavender
Hill, where he returned
it to accused 2. That is not to downplay the
seriousness of his assistance to accused 2 in respect of looking
after the weapon
while he, accused 2 and Anwar Hendricks fled from
the scene of the shooting. He was aware of the circumstances in
which the weapon
had been used and he must have appreciated that it
was not being vouchsafed back to accused no. 2 to be held in
legitimate possession.
[9]
A factor counting in favour of accused no. 1 is that he co-operated
with the police from the time of his arrest and, despite
not being
the most impressive of witnesses, gave essentially honest evidence at
the trial. He has been in custody since his arrest
at the beginning
of September 2012 (a period of about 17 months).
[10]
A court assessment official from the Department of Correctional
Services, Ms N Giyose, reported to the court that accused no.
1 is a
suitable candidate for correctional supervision. The report was
shown under questioning of Ms Giyose and the evidence of
the
accused’s aunt, Ms Claire Ben, to be incorrect in several
material respects. This was a matter of serious concern.
The input
of a correctional officer is a statutory requirement in all matters
in which a sentence of correctional supervision might
be appropriate.
The object of the statutory requirement is defeated if the content
of the reports is of poor quality and materially
inaccurate. The
inadequacy of the report was, however, fortunately for the accused,
to a great extent remedied by the evidence
of the accused’s
aunt. She made a good impression on the court. We are satisfied
after hearing her evidence that if the
accused were to reside with
her during a period of correctional supervision he will probably
receive suitable moral support and
be living in a reasonably
disciplined environment notwithstanding the relatively overcrowded
conditions there, which in the court’s
experience are typical
of the socio-economic environment from which the accused’s
family comes. Ms Claire Ben lives at 8C
Abdullah Moosa Road,
Parkwood, which is outside, albeit not that far away from the
Lavender Hill-Steenberg district where the events
giving rise to the
charges took place.
[11]
Accused no. 2 was 23 years of age at the time of the commission of
the offences. He was a member of the Mongrels gang. His
personal
circumstances were investigated and reported on for the assistance of
the court by a probation officer, Mr Manona. The
accused grew up in
the gang infested area of Lavender Hill and also had a limited
education, leaving school during grade 7. He
too has never held down
fixed employment. Indeed, it was indicated to the court on his
behalf that he had joined the gang in order
to make an income to
support his girlfriend and young baby. His girlfriend gave birth to
a second child while the accused was
in custody awaiting trial. He
was brought up by his mother, who appears to be supportive, having
attended every day of the trial.
She has reportedly assumed
responsibility for the material support of the accused’s two
children while he has been in custody.
[12]
Whereas accused no. 2 cooperated with the police after his arrest and
made a statement admitting his complicity in the shootings
and
expressing remorse for the death of a child, his expressions of
remorse were not borne out by his attitude during the trial,
when he
denied involvement and conducted himself in the dock during the
evidence in a manner that affronted the sensitivity of
the victims
and their families. The effect of this behaviour was reported on in
the reports prepared by the probation officer,
Ms Williams. The
accused’s gang involvement, his related involvement with drug
use and dealing and his lack of remorse do
not inspire much
confidence in his ability to reform and rehabilitate himself.
[13]
It falls to be considered whether there are substantial and
compelling reasons to deviate from the prescribed sentence of life
imprisonment on the count of murder of which accused 2 has been
convicted. The aspects that weigh with me in this connection are
the
relative youthfulness of the accused, his limited intellect, the
vulnerable circumstances in which he grew up and the fact
that in
committing the offences he acted as a pawn in the grander designs of
gang bosses who use the likes of the accused as canon
fodder. I also
consider that very serious though the offences were, the ultimate
sentence of life imprisonment would be disproportionate
to the
offence in the given circumstances and the role of the accused in its
commission. For those reasons I am satisfied that
the court may
depart from the prescribed sentence. The sentence to be imposed must
nevertheless use the prescribed sentence regime
as a point of
departure and be appropriately severe.
[14]
Before imposing sentence it is necessary to say something about the
delays that have attended the conduct of this 24 day trial,
which
commenced as long ago as 9 September 2013 and which concludes today
on the 5th of February 2014. Delays were occasioned
for a number of
reasons, including the indisposition of myself for a week related to
surgery, the domestic circumstances of the
legal representative of
accused 2, a request by the counsel for accused 1 for time to consult
with witnesses, the indisposition
on one day of the assessor and
problems on occasion with getting the accused from prison to the
court on time. Delays were also
occasioned because state witnesses
were not lined up or available so as to enable the prosecutor to
continue when court time was
still available. I expressed my
frustration at some of these delays, which seem all too typical in
criminal litigation, on numerous
occasions during the trial. The
last straw, however, was when the sentencing reports that I had
directed be obtained were not
available on 10 December 2013, after
the trial had been adjourned for five weeks for that purpose on 5
November 2013.
[15]
Mr Wolmarans, the prosecutor, advised the court that he had addressed
telefaxes to the relevant functionaries charged with
the preparation
of such reports on 12 November 2013. It was not explained why a
whole week should have passed after the adjournment
before the
relevant request was addressed. There was no documentary proof of
the transmission of the relevant telefaxes, and it
would appear that
when the prosecutor made enquiries of the Departments of Correctional
Services and Social Development (Western
Cape), only on the very day
to which the matter had been adjourned, that no-one at those
departments had any knowledge of their
receipt. In my judgment the
prosecutor should have been more expeditious in conveying the court’s
direction, he should have
obtained an early indication from the
departments concerned as to which officials there were dealing with
the matter and he should
have monitored progress to ensure that the
court’s directives were being carried out within the
requirements of the applicable
time-frame.
[16]
The prejudice to the State occasioned by the delay is obvious. A
judge and a court were unnecessarily occupied needlessly.
The legal
representatives of the accused and the assessor attended court
unnecessarily. The accused were transported from prison
to court for
no purpose. The members of the public with a particular interest in
the case, notably those connected with the victims
of the offences,
came to court for no reason. They are people who can ill afford the
wasted travel costs. The costs of a wasted
court day in these
circumstances is not insignificant. I would estimate the wasted cost
to the taxpayer as between R10 000 and
R20 000. The delay in
bringing the proceedings to completion in respect of sentencing was
prejudicial to the accused, and obviously
also to the administration
of justice. I therefore decided to formally investigate the delay in
terms of
s 342A
of the
Criminal Procedure Act 51 of 1977
.
[17]
Mr Willem Stipp, the head of Community Corrections at the Department
of Correctional Services in Cape Town testified that there
was no
record of a faxed request having been received from Mr Wolmarans of
the Directorate of Public Prosecutions on 12 November
2013. The
first time that he became aware of the court’s directive was
when Mr Wolmarans contacted him on 10 December 2013,
which was the
trial resumption date for which the requested reports were required.
It was evident from Mr Stipp’s evidence
that there was no
formal protocol in place to regulate the receipt and attendance on
requests for correctional reports from the
High Court. It was
apparent that had he received the request for the correctional report
on accused no.1 shortly after the report
had been called for on 5
November 2013, it could have been prepared well in advance of the 10
December resumption date. Mr Wolmarans’s
inability to provide
the court with proof that his telefaxes of 12 November were
transmitted also showed that there was no proper
administrative
system in place at the office of the Director of Public Prosecutions
in Cape Town for such communications to be
recorded and monitored.
[18]
Ms Folan Benjamin, a supervisor at the Metro-South region’s
office of the Department of Social Development (Western Cape),
also
testified that her office had no record of receiving the telefax that
Mr Wolmarans had marked for the attention of one Ronda
Luyt. Mr
Wolmarans had explained earlier that he had come by Ms Luyt’s
name after numerous telephone calls to establish
with whom he should
be dealing to obtain the required social worker reports. He
mentioned the names of a number of persons with
whom he had spoken.
Ms Benjamin conceded that a request for reports in High Court matters
could be accommodated with the five-week
adjournment that had been
given for the purpose.
[19]
It is quite clear on all the evidence that was adduced in the
s 342A
enquiry that the delay in the trial after 10 December 2013 was
unreasonable. This trial should have been completed before the
commencement of the year-end recess. It should not have had to drag
on into the first term of 2014.
[20]
The court calls for reports from correctional officers and probation
officers or social workers on a regular basis. Such reports
are
required by law in all matters in which a sentence in terms of
s
276(1)(h)
of the
Criminal Procedure Act might
be considered and they
are also of use to the courts in many other matters. It struck me as
absurd in the circumstances that a
prosecutor would not have an
established point of contact with the relevant departments and a
formalised protocol to process such
requests. The absence of a
formalised administrative system established between the Directorate
of Public Prosecutions and the
relevant sections of the Departments
of Correctional Services and Social Development is bound to result in
the perpetuation of
the inefficiency and resultant delays that have
characterised the current matter. It is also evident that the
Directorate of Public
Prosecutions should have in place a register of
correspondence to exclude the scope for the unseemly debate that
arose in the current
matter as to whether the requests for the
reports were in fact dispatched when Mr Wolmarans understood them to
have been. He explained
that he did not personally transmit the
telefaxes; that was done by some other person without any proof of
transmission being provided
to him. The evident lack of organisation
is quite unsatisfactory and its prejudicial effect on the
administration of criminal
justice is all too obvious, as
demonstrated in the current case. The position should not obtain
that when there is an unreasonable
delay such as has occurred in the
current case it is not evident why, and who is responsible for
occasioning it.
[21]
In terms of
s 342A(3)
of the
Criminal Procedure Act, if
the court
finds that the completion of the proceedings is being delayed
unreasonably, the court may issue any such order as it
deems fit in
order to eliminate the delay and any prejudice arising from it or to
prevent further delay or prejudice. The provision
is widely worded,
and whereas most orders made in terms of the section, which was
introduced in terms of the
Criminal Procedure Amendment Act 86 of
1996
, are directed at expediting the completion of pending
proceedings, there is no reason, having regard to the evident general
object
of the legislative insertion, why an order should not be made
thereunder which is directed at preventing the recurrence generally
of a cause of delay that has manifested in a particular case, but is
likely, if left unaddressed, to be repeated in future cases.
I
therefore intend to make an order in the form of a structural
interdict directing the Director of Public Prosecutions, in liaison
with the appropriate counterparties at the Departments of
Correctional Services and Social Development (Western Cape), to
implement
measures to put in place a formal administrative protocol
that will establish clear lines of communication between the
departments
in respect of the processing of requests for correctional
or probation reports by the High Court, including the implementation
of a system of record keeping in respect of such communication
[22]
In respect of his conviction on count 5, that is contravening
s 3
read with s 120(1)(a) of the Firearms Control Act 60 of 2000
(unlawful possession of a firearm), accused no. 1 (Gary Peters) is
sentenced to a term of three years’ imprisonment, the whole of
which shall be suspended for five years on the following conditions:
(i)
That the accused is not convicted of any offence involving a
contravention of the said Act committed during the period of
suspension
and for which a sentence of imprisonment without the
option of a fine is imposed;
(ii)
That the accused undergo a period of 12 months of correctional
supervision in terms of
s 276(1)(h)
of the
Criminal Procedure Act 51
of 1977
comprising of the following community corrections:
(a)
House arrest for the full duration of the period of correctional
supervision at 8C Abdullah Moosa Road, Parkwood, Cape Town,
or such
other place as might be determined by the Commissioner for
Correctional Services on written application by the accused
and on
terms to be determined by the Commissioner of Correctional Services,
but which shall provide that the accused shall be confined
to his
places of abode for no less than eight hours on any day in which he
is engaged in employment and for no less than 12 hours
on any day in
which he is not so engaged.
(b)
200 hours of community service, to be undertaken at the rate of not
less than 16 hours of service per calendar month during
the period of
correctional supervision. Subject to the aforegoing, the nature of
the community service and the place and times
during which it shall
be undertaken shall be determined by the Commissioner of Correctional
Services.
(c)
Participation in such treatment, development and support programmes
as may be determined by the Commissioner of Correctional
Services.
The accused is directed to submit to a complete assessment by a
social worker of the Department of Correctional Services
to
facilitate the determination of the programmes in which he should
participate.
(d)
Restriction to the magisterial districts of the Cape and Wynberg and
such other districts as the Commissioner of Correctional
Services may
on written application by the accused determine for the purposes of
facilitating the accused’s engagement in
employment, or for
compassionate reasons.
(e)
Refrainment for the whole of the period of correctional supervision
from the use of alcohol or illegal drugs.
(f)
Prohibition during the whole of the period of correctional
supervision from attendance at any place such as a tavern, pub or
shebeen where alcoholic beverages are served.
(g)
Monitoring by the Department of Correctional Services, including
electronic tagging if so determined by the Commissioner, in
order to
ensure compliance with the conditions of correctional supervision.
(h)
The obligation to inform the Commissioner of Correctional Services in
advance of any change of residential and/or work address.
The
accused shall report to the Correctional Officer at 17 Corporation
Street, Cape Town by no later than 14h00 on Thursday, 6 February
2014
for the purpose of commencing his correctional supervision.
[23]
Accused no. 2 is sentenced to:
1.
25 years’ imprisonment on count 3 (murder);
2.
10 years’ imprisonment on count 4 (attempted murder); and
3.
5 years’ imprisonment on counts 5 and 6 (contravening
s 3
and
90
read with
s 120(1)(a)
of the
Firearms Control Act 60 of 2000
, that
is unlawfully possessing a firearm and ammunition), both counts being
taken as one for the purposes of sentence.
It
is directed that the sentences imposed in respect of counts 4, 5 and
6 shall be served concurrently with that imposed in respect
of count
3, with the result that the accused will serve an effective period of
25 years’ imprisonment.
[24]
An order is issued in terms of
s 342A(3)
of the
Criminal Procedure
Act 51 of 1977
directing the Director of Public Prosecutions (Western
Cape), in liaison with the appropriate counterpart officials at the
Departments
of Correctional Services and Social Development (Western
Cape), to–
(i)
expeditiously implement measures to put in place a formal
administrative protocol that will establish clear lines of
communication
between the Directorate and the aforementioned
departments in respect of the processing of requests by the High
Court for correctional
or probation reports in criminal trial
matters, including the implementation of a system of record keeping
in respect of such communications;
(j)
submit a written report to the Registrar by no later than 30 April
2014 confirming that the order has been complied with, setting
forth
the nature of the measures that have been implemented.
[25]
The Registrar is directed to forward a copy of this judgment to the
Director of Public Prosecutions and to Mr Willem Stipp,
Head,
Community Corrections, Department of Correctional Services, Cape
Town.
A.G.
BINNS-WARD
Judge
of the High Court