South gauteng high court johannesburg case no: ss

T P MUDAU

ACTING JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

POSTEA: (7TH MARCH 2013)

SENTENCE

[107] These offences fall squarely within the purview of s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act). The relevant part of this section provides:
Sections 51 of the Criminal Law Amendment Act 105 of 1997 provide:
“51. Minimum sentences for certain serious offences.

(1) Notwithstanding any other law but subject to ss (3) and (6), a High Court shall, if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the person to imprisonment for life.

(2) Notwithstanding any other law but subject to ss (3) and (6), a regional court or a High Court shall -

(a) If it has convicted a person of an offence referred to in Part II of Schedule 2, sentence the person in the case of -

(i) a first offender, to imprisonment for a period not less than 15 years;

(3)(a) If any court referred to in ss (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.”
[108] Part 1 of Schedule 2 stipulate as follows:
“PART I

Murder, when -

(a) it was planned or premeditated;

(b) ……………………………………

(c) the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences:

(i) ………………

The relevant Part II of Schedule 2 is as follows:

(i) ………………

(ii) robbery with aggravating circumstances; ………………
[109] “Aggravating circumstances” are defined in s 1 of the Criminal Procedure Act 51 of 1977, in relation to 'robbery', to mean —



“(i) the wielding of a fire-arm or any other dangerous weapon;

(ii) the infliction of grievous bodily harm; or

(iii) a threat to inflict grievous bodily harm,

by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence.”
[110] In this case, the brutality and callousness of the murders were such that the two deceased young men, handcuffed and defenceless, were not only strangled to death, but also robbed of their possessions. Both suffered, what must have been, agonising and painful deaths at the hands of a brother upon whom, they should have relied for protection. Thus, the evidence supports a further finding that the murders were pre-meditated .The circumstances in which the crimes were committed are undoubtedly such as to render it necessary to impose a sentence of imprisonment for life unless substantial and compelling circumstances justify a lesser sentence.
[111] Ponnan JA pointed out in S v Matyityi¹⁰ para 11 as follows:
“S v Malgas is where one must start . . . . Malgas, which has since been followed in a long line of cases, set out how the minimum sentencing regime should be approached, and in particular how the enquiry into substantial and compelling circumstances is to be conducted by a court. To paraphrase from Malgas: the fact that Parliament had enacted the minimum sentencing legislation was an indication that it was no longer business as usual. A court no longer had a clean slate to inscribe whatever sentence it thought fit for the specified crimes. It had to approach the question of sentencing, conscious of the fact that the minimum sentence had been ordained as the sentence which ordinarily should be imposed, unless substantial and compelling circumstances were found to be present.”
[112] However, as was pointed out by Nugent JA in S v Swart,¹¹
“In our law retribution and deterrence are proper purposes of punishment and they must be accorded due weight in any sentence that is imposed. Each of the elements of punishment is not required to be accorded equal weight, but instead proper weight must be accorded to each according to the circumstances. Serious crimes will usually require that retribution and deterrence should come to the fore and that the rehabilitation of the offender will consequently play a relatively smaller role.”
[113] The accused’s personal circumstances are as follows. When the accused committed the offences, he was a first offender aged 28 years. He is currently 30 years of age. After completing high school, he studied and completed a BA degree in economics in the USA in 2006.He worked for short periods within the banking industry in the USA and the DRC. In 2004, he got married whilst studying in the USA to gain citizenship or at the very least resident status and to reap all the attendant benefits and privileges by marrying an American woman. They divorced in 2008 after their marriage had failed. After his arrived in SA, he registered for a commercial degree with Unisa, but soon dropped out .He is a father to a baby girl born outside marriage to a live-in girlfriend. His father unknowingly, continued to pay for the accused’s high standard of living in SA. The child is currently 2 years and 3 months of age. The child is in the care and custody of the biological mother. At the time of the commission of these offences, the accused was not employed.
[114] Undoubtedly, the accused has been reared in a loving and protected environment. The conditions of his upbringing, his travels and studies abroad, all at the expense of his caring and loving parents are what many in his native country and in Africa generally, can only dream about. The accused had everything going for him i.e. a house registered in his name in the USA, another house and a car in the DRC, as well as a job all secured by his well connected father. All these wealth was not enough. His greed did not stop him, it would seem, to abandon it all in the DRC and pursue whatever little his brothers had in in South Africa.
[115] The two deceased’s lives were terminated at a tender age of 23 and 24 years respectively. Their father did not on the main, provide for them any differently than what was provided to the accused. As a matter of fact, the father testified that, he loved and provided more for the accused who is the eldest, than to any of his other children.
[116] I have been requested to find in the accused’s favour, that substantial and compelling circumstances exist in that the accused’s family is the real victim in this matter, further that the accused has prospects to be rehabilitated. In Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others¹², Navsa JA stated para 22 that: “…In my view, when weighed against the objective gravity of these offences, their prevalence in South Africa and the legitimate expectations of society that such crimes must be severely punished, neither the youthfulness of the respondents nor their prospects of rehabilitation tip the balance in their favour.”
[117] The offence of murder in particular, is a reprehensible crime. The bill of rights in our Constitution¹³ stipulates that: “Everyone has a right to life.”¹⁴ It is because of this provision in our Constitution, as well as an amendment to the CPA¹⁵, which outlaws the death sentence that the accused’s life is guaranteed (see S v Makwanyane and Another¹⁶. In the past, unless there were extenuating circumstances found to be present, the accused would be facing a death sentence. It is this basic right to life as enshrined in our bill of rights meant for citizens, permanent residents and foreigners within our shores, which the accused denied his brothers to claim. Our laws recognise that life is a God given gift, which must be protected. The right to life is not, in my view only intended for those found guilty of serious crimes, but to victims of crime as well. The life of any human being regardless of age, status, condition, religious beliefs, creed or sexual orientation, needed to be celebrated and not destroyed.
[118] I have carefully considered the accused person's actions before, and what can reasonably be inferred during and after the events. In my view, his conduct in general, had been planned, goal-directed and well-focused.

[119] At no stage during the proceedings, did the accused advance any explanation for the killing of the two deceased brothers; neither did he express any remorse for what he has done. He showed little if any emotions during the course of this trial, except for the time when a description was given by Mr Etoja how the two deceased’s bodies were found inside the house. On the contrary, he relied on his constitutional right to be innocent until proven guilty, thereby obliging the State to prove its case against him, despite overwhelming evidence. The accused however, cannot be faulted for the course he has chosen, as it is his right enshrined in our bill of rights. Whereas the accused did not take the Court into his confidence and come clean as to what led to the incidents during which the two deceased were killed and robbed, the only conclusion to reach is that these were senseless killings and crimes perpetrated on younger and defenceless persons.
[120] It need hardly be said that in the case of the crimes as heinous as the present ones, the deterrent and preventive objectives of punishment predominate. This is an inescapable consequence of crime and one which usually brings about more hardship to the offender’s family than what is hoped for. Unfortunately, one cannot allow one’s sympathy for the accused’s family to deter one from imposing the kind of sentence dictated by the interests of justice and society. In recent years the protection of the community and the purpose of prevention of future offences have received greater emphasis by our courts, particularly in cases of violent crime.

[121] In the Makwanyane case¹⁷, the late Chaskalson P (as he then was), said the following about the interests of society.

"The level of violent crime in our country has reached alarming proportions. It poses a threat to the transition to democracy, and the creation of development opportunities for all, which are primary goals of the constitution. The high level of violent crime is a matter of common knowledge...... It is of fundamental importance to the future of our country that respect for the law should be restored, and that dangerous criminals should be apprehended and dealt with firmly." (at para 117).

These remarks are as relevant today, as they were then. The two deceased brothers were in this country to study and better their lives. This, in time, would have benefitted communities wherever they would have chosen to live their lives.

[122] The fact that the accused is a first offender, has robbed (and murdered) his own brothers and been in custody since his arrest, cannot in my view, constitute substantial and compelling circumstances justifying lesser sentences than those prescribed. In this matter none such circumstances exist. The accused has not only proved to be a danger to his family, and but is a threat to the larger community and in particular, to all peace loving people. It is not only the Elongo family who were affected by these crimes, but the community too. The image of this country in the eyes of the global community as a result of this incident was to my mind, tarnished. The accused was in my view, driven by greed. In this matter, the accused’s personal circumstances, pales in comparison to the interest of the larger community.
[123] After giving due consideration to the personal circumstances of the accused, the gravity of the offences the accused was convicted of, the legitimate interests of society and the need to emphasise deterrence, specific and general, as well as retribution as the main objectives of punishment, I consider the following sentences to be appropriate.
Count 1: A life term of imprisonment.

Count 2: A life term of imprisonment.

Count 3: Fifteen (15) years of imprisonment.

Count 4: fifteen (15) years of imprisonment.

In terms of section 103 (1) Act 60 of 2000 the accused is declared unfit to possess an arm.

______________________________________

T P MUDAU

ACTING JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG
APPEARANCES:
FOR THE STATE: ADV A SMITH
ON BEHALF OF THE ACCUSED: ADV LS NKUNA

1 R v Blom 1939 AD 188, 202 to203

2 The South African Law of Evidence by:DT Zeffert,AP Paizes and A St Q Skeen

3 In terms of section 40 of the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002 as amended

4 In terms of section 186 of the Criminal Procedure Act 51 of 1977

5 S v Chabalala 2003 (1) SACR 134 (SCA)

6 S v Van der Meyden 1999 (1) SACR 447 (W) at 448

7 S v Van Aswegen 2001 (2) SACR 97 (SCA)

8 S v Mtsweni 1985 (1) SA 590 (A)

9 Above see foot note 1

[2012] ZASCA 26 (27 March 2012)

10 2011 (1) SACR 40 (SCA) para 11

11 2004 (2) SACR 370 (SCA) Para 12

12 2009 (2) SACR 361 (SCA) ([2009] 4 All SA 295) Para 22

13 Constitution of the Republic of South Africa, Act 108 of 1996

14 Section 8

15 Section 34 of the Criminal Procedure Amendment At 105 1997

16 1995(2) SACR 1 (CC)

17 Footnote 14