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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

   CASE NO : CC 22/2014

DATE DELIVERED : 23 MAY 2014

In the matter between :

THE STATE

and

ZAMILE RHINI                                                                                                               Accused

JUDGMENT

RUGUNANAN, AJ :

[1] This is a judgment on sentence. The accused, Mr Zamile Rhini, was convicted of murder. Because the offence was not planned or premeditated, section 51(2)(a) read with section 51(3)(a) of the Criminal Law Amendment Act No 105 of 1997 (‘the Act’) is applicable. These provisions render a convicted offender liable to 15 years’ imprisonment unless substantial and compelling circumstances which justify the imposition of a lesser sentence are found to exist.

[2] The aforestated prescribed sentence should not be departed from lightly and for flimsy reasons which cannot withstand scrutiny. Although the Act does not prohibit a court from weighing all the usual considerations traditionally taken into account when sentencing (see S v Mahomatsa 2002 (2) SACR 435 (SCA) at para [14]), it is the ultimate cumulative impact of those circumstances that must be such as to justify a departure from imposing the prescribed sentence (see also S v Malgas 2001 (1) SACR 469 (SCA) at 477g).

[3] The accused’s personal circumstances are set out below. He elected not to testify. That was his right, but it is not without consequences (see S v Matyityi 2011 (1) SACR 40 (SCA) at 52).

[4] From the bar Mr Mtini placed on record that the accused was born in Lesotho and is presently [………] years of age. He had no formal education, is illiterate and grew up as a shepherd. He is a widower and has a [.....] aged [….]. She attends school and lives with his parents in Lesotho. He last saw them approximately 2 years ago. The accused has been in custody for the commission of this offence since his arrest on 8 September 2013. Before then he did odd jobs and did […..] from which he earned about R60 per day which he utilised to support himself and his [.....] with food and clothing. The brick-making was seasonal. He did not engage in that activity during the winter months because he could not withstand the chill of the water and mud composite used in the manufacturing process.

[5] Against the background of the accused’s personal circumstances, it was argued that in mitigation of sentence the following aspects should be taken into account, namely:

·         the period of some 8 months the accused spent in custody while awaiting trial;

·         his co-operation with the authorities by making a sworn confession shortly after his arrest;

·         his intention to plead guilty from the commencement of the trial and that the rejection of his plea by the state should not be held against him;

·         the circumstances pertaining to the commission of the offence which have already been dealt with in the judgment on conviction;

·         the role which liquor played in the commission of the offence even though it did not have the effect of excluding the accused’s guilt;

·         despite his old age and frailty the deceased frequented taverns and risked exposing himself to danger; and

·         that it was unusual for an [….] year old man to quarrel over a female with another man almost half his age.

[6] On behalf of the accused, Mr Mtini submitted that the cumulative effect of these aspects and the accused’s personal circumstances amounted to substantial and compelling circumstances which meant that this court could depart from imposing the prescribed minimum sentence of 15 years’ imprisonment and impose a competent but lesser sentence.

[7] In aggravation of sentence Mr Mgenge for the State drew on the following submissions.

[8] Although not much is known of the precise circumstances under which the murder was committed, it was degrading to have stripped the deceased, to have tied his arms and to have dumped him into a trench. 

[9] As can be gathered from the accused’s confession, the strangulation of the deceased was brutal and shocking. It reveals that the deceased was pinned into a corner which meant that he could not offer resistance. The murder constituted a gross violation of the deceased’s right to life and dignity.

[10] The deceased was a frail man of advanced age. The perception and attitude of the community is that the elderly and frail should be protected and any attacks on them are viewed with abhorrence. The accused’s previous convictions, to which he admitted, include three (3) successive convictions since 2004 for committing assault with intent to do grievous bodily harm. This demonstrates a propensity to commit offences involving violence. Consequently, the accused should be considered a danger to the people of Aliwal North.

[11] Mr Mgenge was critical of the submission that the accused’s motivation to plead guilty is an indicator of remorse. In an open and shut case such as the present, he contended that the plea of guilty assumes neutral status. In this regard he referred to S v Matyityi 2011 (1) SACR 40 (SCA) at 46h. He also contended that the accused misled Mr Civatha the deceased’s son-in-law, when the accused told him that the deceased had left with two females, and this misrepresentation by the accused detracted from any indication of remorse.

[12] An additional factor of neutral value contended for is that the accused’s co-operation with the authorities in making a confession (Exhibit “F”) did not emerge during the investigation of the offence. The confession was made on 10 September 2013 after his arrest and after the fact because the body of the deceased was discovered without his assistance.

[13] The role that liquor played in the commission of the offence also assumed neutral value because there was no evidence of its effect on the accused’s capacity to have appreciated the implications of his conduct. In support of this contention the court was correctly referred to an unreported judgment of this Division in S v Mqikela Case No 119/07 (ECHC), delivered on 26 October 2009.

[14] In the same breath Mr Mgenge contended that there was nothing untoward about a person of the deceased’s age who visited a tavern, and that the deceased’s visit to the tavern was a factor of neutral influence. This contention is fortified because the evidence elicited during trial from the deceased’s son-in-law revealed no history of the deceased inviting trouble whenever he visited a tavern.

[15] It was also contended that the fact of the accused having an [….] year old [.....] does not read persuasively as a mitigating factor. Referring to S v Beyi 2011 (2) SACR 23 (ECG) at 25e, Mr Mgenge stated that the accused as a breadwinner should have known that he was placing the well being of his child in jeopardy when he committed the offence.

[16] It is considered convenient at this point to state that the court has no hesitation in accepting the arguments by Mr Mgenge in relation to those factors that are of neutral persuasion.

[17] Relevant to the circumstances pertaining to the commission of the offence, Mr Mgenge stated that it was clear from the accused’s confession that he persisted strangling the deceased even when the deceased released his bite on the accused’s finger.

[18] Accordingly, it was contended that the effect of the evidence in aggravation considerably outweighs the mitigating circumstances pleaded for the accused, and that substantial and compelling circumstances could not be found to exist. The State called for the imposition of a sentence of imprisonment in excess of 15 years but urged that 20 years would not be inappropriate.

[19] In reply, Mr Mtini submitted that the evidence indicating the accused misled the deceased’s son-in-law when he told him that the deceased had left with two females should, at best, be regarded as neutral because there could be any number of reasons within the range of human experience as to why the accused misled him. This submission is speculative and has no merit.

[20] In the event that substantial and compelling circumstances were found not to exist, a sentence of 15 years’ imprisonment was contended for, but if such circumstances were found to exist, Mr Mtini submitted that a lesser sentence considered appropriate in the discretion of the court would be competent.

[21] On careful deliberation of all these factors it is considered appropriate to comment on several aspects before determining an appropriate sentence.

[22] The accused’s previous convictions demonstrate a propensity for committing crimes of violence and it cannot be concluded with confidence that he will not in future resort to violence. In point, the conviction for murder aptly demonstrates that he graduated to committing a crime of a more serious nature.

[23] Regard being had to S v Beyi supra, the submission that the accused as a breadwinner should have known that he was placing the welfare of his child in jeopardy when he committed the offence, is not unseemly. Any mitigatory value that could be attributed to the accused having an [….]year old [.....] is countered by the circumstance that his [.....] lives with his parents in Lesotho and that he last saw them about two years ago.

[24] It was said that the accused demonstrated remorse by his motivation to plead guilty at the commencement of the trial. It is accepted for the reasons contended by Mr Mgenge that this is a neutral factor, but it bears mentioning that the accused did not, through his legal representative, tender an apology to any of the deceased’s family or community members seated in the gallery, in particular the deceased’s son-in-law who testified a few days ago. It is also unfortunate that the accused’s professed sense of remorse and it how it would have weighed on his conscience was not fully explored in mitigation. In this regard the comments made by the court in S v Matyiyi supra at 47a-d are apposite.

[25] Turning to the accused’s age, it is questionable if it redounds to his benefit, where the Court has not been told anything about his level of maturity or any other influence in his life experience which may have been of assistance for determining sentence. By itself, the accused’s chronological age where it is insubstantiated by such detail, is of neutral significance.

[26] On the other hand, it is remarkable that no evidence was tendered of the impact of the deceased’s death on his family. Doubtless, his death must have had some impact on them and perhaps also the community from which he came, but those issues have regrettably not been fully canvassed except for the evidence of the deceased’s character that was elicited from his son-in-law during the trial proceedings.

[27] The question the court is faced with is whether there are any substantial and compelling circumstances that justify a departure from the prescribed minimum sentence. It is evident from the aforegoing analyses, and the principles stated in S v Mahomotsa and S v Malgas supra which this court must apply, that this question must be answered in the negative.

[28] Accordingly, the sentence considered fitting is one of 15 years’ imprisonment which takes due cognisance of the nature of the crime, the Legislature’s desire to impose a firm punishment, the circumstances of the accused and the protection of the community.

__________________

S RUGUNANAN

Acting Judge of the High Court

23 May 2014

Appearances :

Adv Mtini, for the Accused; Instructed Grahamstown Justice Centre

Adv Mgenge, for the State; Director of Public Prosecutions, Grahamstown

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