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ELIJAH SKENJANA
AND
THE STATE
469/83/AV
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ELIJAH SKENJANA Appellant
AND
THE
STATE Respondent
CORAM: Trengove, Nicholas, JJA et Eloff,
AJA
HEARD: 21 March 1985
DELIVERED: 28 March 1985
JUDGMENT NICHOLAS, JA
In his lifetime JOHANNES DE JONGH was a
butcher. He owned DE WET SLAGHUIS in WORCESTER, and his wife, Mrs.
MARIA
2 MARIA DE JONGH, worked with him there. They lived in a house
nearby.
Shortly after 7 p.m. on Friday 19 June 1981, DE
JONGH closed his
shop, and drove to his home in his bakkie.
His wife, who was sitting next to
him, had with her a bag
containing the day's takings. Arrived at the
house,
DE JONGH parked the bakkie outside the kitchen. Tel
ling his wife
to remain in the vehicle, he got out and
unlocked the kitchen door. Shortly
afterwards all the
lights in the house went on, presumably when DE JONGH
threw
the main switch in the kitchen. He screamed as he was
set upon by
two men who were lying in wait for him
inside the house. A struggle
ensued
3
ensued. Mrs. DE JONGH gave a prolonged blast on
the
hooter of the bakkie, hoping to attract the attention of
a
neighbour. Two men, who were also inside
the house, came . through the
kitchen door to the bakkie. They broke the window of the vehicle, flung open the
door, and pulled out
Mrs. DE JONGH and the bag she had with her. They dragged
her into the house, seriously assaulted her, and tied her up with a blanket
and
pillows over her head. The intruders opened a safe in a bedroom and removed the
contents. They ransacked the house, and then
left in the bakkie with their
booty.
The police arrived on the scene shortly afterwards. DE JONGH was lying
on his back on the kitchen floor. He
was
4 was dead. Mrs. DE JONGH was in a severely shocked
condition.
Arising out of this incident, four men were tried in the Supreme
Court in Cape Town on charges of (1) murder and (2) housebreaking
with the
intent to rob and robbery with aggravating circumstances. ELIJAH SKENJANA, the
present appellant, was accused No. 3.
All four of the accused were found
guilty on the second count. The State did not seek convictions in respect of the
first count, on
which they were accordingly acquitted.
The findings of the
trial Court may be summarised as follows:
1
5
1. The accused broke into the house in pursuance of a plan to wait there for the deceased, to overcome any resistance he might offer, and to rob him and his wife. 2. The deceased was alive and well when he entered the house, but when the accused left he had been brutally assaulted, and was dead. There was bruising of both lips, over both maxillae and on the neck.
The most probable cause of death was
smothering, although death possibly resulted from strangulation or more remotely
from shock in
consequence of the attack on deceased.
3. The deceased died as
a result of an attack or attacks
on
6 on him by one or more of the accused. On the evidence, however, it was not possible to say which of the accused was responsible for his death.
4. The accused stole cash totalling R2 280,80 and numerous articles from inside the house, and the deceased's bakkie. 5. When Mrs. DE JONGH was medically examined on the night of 19 June 1981, she was shocked and anxious. She had sustained a number of bruises. 6. The Court found aggravating circumstances based on the murder of the deceased and the assault on Mrs. DE JONGH.
In passing sentence, the trial judge (SCHOCK J) said that the offences committed by the accused were of
a
7 a very serious nature - so serious that sentence of death was competent. Mr. and Mrs. DE JONGH were elderly people. (They were 63 years old at the time). They were both assaulted, DE JONGH fatally and Mrs. DE JONGH seriously: although she did not suffer grievous bodily harm, the learned judge said, "for a woman of her age and appearance to have gone through what she did at the hands of the accused, was a most terrible and frightening experience." SCHOCK J said that the case was a border line one, and it was only after the most anxious consideration that he had decided that the death sentence was not justified, taking into account the circumstances that there was no proof
which
8 which of the accused caused the death of the deceased, that no
weapons were used, and that the previous records of the accused did
not show any
appreciable propensity for violence. The case did, however, call for a very
lengthy prison sentence, because "this type
of dangerous crime is far too rife,
both in the town and country, and calls for stern penalties". The learned judge
did not think
that the circumstances called for any discrimination between the
accused, and he sentenced each of them to 20 years imprisonment.
SCHOCK J
granted leave to the appellant to
appeal to this Court against the
sentence. The
grounds of appeal were (a) that the trial judge did
not
9 not give due weight to the personal circumstances of the
accused; (b) that a sentence of 20 years imprisonment was disturbingly
inappropriate, unduly severe and induced a sense of shock, and in imposing it
the trial judge over-emphasized the interests of the
community and the gravity
of the offence and overlooked the element of mercy; and (c) the trial judge
erred in not directing that
a sentence of 4 years imprisonment for rape imposed
on the accused in 1981, should run concurrently with the said sentence of 20
years imprisonment.
The accused's personal circumstances as disclosed in his
evidence in mitigation were these.
He was 24 years of age. He left school when
he
10 he was in Std. IX, upon the death of his father. He was
then aged 16. He had a daughter aged 7 whom he supported. He was employed
by
Rainbow Chickens. In 1976 he had been convicted on two relatively minor charges.
On 4 September 1981 he had been sentenced to
4 years imprisonment on a charge of
rape.
In giving leave to appeal, SCHOCK J said that in deciding on the
sentence he "had regard to the accused's personal circumstances,
but felt that
this was a case where consideration of the nature of the crime which had been
committed and the public's interest must
predominate".
In my view, these
personal circumstances, when viewed against the enormity of his crime, did not
have a
great
11
great deal of weight:
A sentence of 20 years imprisonment is undoubtedly very severe, and it is not a sentence which I would have imposed had I been sitting as the trial judge. My personal view is that the public interest is not necessarily best served by the imposition of very long sentences of imprisonment. So far as deterrence is concerned, there is no reason to believe that the deterrent effect of a prison sentence is always proportionate to its length. Indeed, it would seem to be likely that in this field there operates a law of diminishing returns: a point is reached after which additions to the length of a sentence produce progressively smaller increases in deterrent
effect
12 effect, so that, for'example, the marginal deterrent value of a sentence
of 20 years over one of say 15 years may not be significant.
Similarly in
regard to the aspect of retribu
tion. This has tended to yield ground to
the
aspects of deterrence and reformation, but it is not
wrong that, in
determining a proper sentence, the Courts
should give some recognition to the
natural indignation
and the fears and apprehensions of interested persons
and
the community at large. (See R v Karg 1961(1) SA 231(A)
at
236A-B). In a case such as the present the Court
must give heed to the demand
of the ordinary citizen
for the condign punishment of robbers who invade
the
sanctity of the home to commit rapine and violent as
sault ...
13 sault and worse. But that demand may well be satisfied by the imposition
of less that the most severe sentence.
Nor is it in the public interest that
potentially valuable human material should be seriously damaged by long
incarceration. As I
observed in S v Khumalo and Another 1984(3) SA 327(A)
at 331, it is the experience of prison administrators that unduly prolonged
imprisonment brings about the complete
mental and physical deterioration of the
prisoner. Wrongdoers "must not be visited with punishments to the point of being
broken."
(per HOLMES JA in S v Sparks and Another 1972(3) SA 396(A) at
410G).
The
14 The present appellant is a young man,
apparently of above average intelligence and he still has the potential of
becoming a useful
citizen.
But as I have said, these are personal views; and
sentence is pre-eminently a matter for the discretion of the trial judge. It
cannot
be said that, in imposing the sentence that he did, SCHOCK J did not
reasonably exercise that discretion. There is, therefore, no
basis for
interfering with the sentence.
With regard to the third ground of appeal, the
trial judge was asked by defence counsel for the appellant to direct in the
exercise
of his power under s. 289(2) of the Criminal Procedure Act,
1977, that the sentence of 4
years
15 years which the accused was serving for rape should run concurrently with
the sentence of 20 years. In his judgment on sentence,
however, he said that he
did not think this appropriate and he was not prepared to do so.
The
effective sentence to be served by the appellant is one of nearly 24 years. This
is only one year short of a sentence of 25 years,
which is "exceptionally long
according to our practice" (R v Mzwakala 1957 (4) SA 273(A) at 278 D),
and "will only be appropriate in very exceptional circumstances" (S v
Whitehead 1970 (4) SA 424(A) at 438 H). Serious as were both the crimes of
which the appellant was convicted, the case is not of
the
16 the exceptional kind which calls for such a long period
of imprisonment.
Counsel for the State submitted that if the sentences were
to run concurrently, there would result a disparity between the appellant
and
the other accused, since they would all be serving an effective sentence of 20
years, whereas the appellant had been convicted
not of one but of two serious
offences. That is so, but I do not think that this consideration should lead one
to ignore the cumulative
effect of the sentence imposed on the appellant,
particularly when regard is had to the fact that the appellant was only 24 years
of age, whereas accused No 1 was 39 and accused No 2 31 years old.
In
17
In the result, the appeal succeeds to the
extent that the sentence imposed by the trial Court
on the appellant is varied so as to read
"TWENTY (20) years imprisonment. The sentence of FOUR (4) years imprisonment imposed on 4 September 1981 is to run concurrently with the said sentence of 20 years."
H C NICHOLAS, JA
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