---

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, BHISHO)

 

CASE NO:  CC12/2010

 

Sentence handed down on 07 October 2010

 

In the matter between:

 

 

THE STATE

 

 

and

 

 

MABHUTI MURHALI DYONASE                                                                 ACCUSED

                                                                    

 

SENTENCE

 

SWARTBOOI AJ:

INTRODUCTION

[1]          Mr Dyonase you have been convicted by this Court of the crime of murder and the Court must now impose sentence.

[2]          You elected not to testify and did not present any evidence in mitigation of sentence.  Your legal representative has made representation of your personal circumstances.

[3]          In determining an appropriate sentence, the Court takes account of the personal circumstances of the accused, the nature of the crime and the interests of society[1].  In appropriate circumstances the Court will exercise a measure of mercy[2].

PERSONAL CIRCUMSTANCES OF THE ACCUSED

[4]          Your personal circumstances are the following.  At the time of the commission of the offense you were 22 (twenty two) years old.  Single without any children.  At the time of your arrest you were a grade 11 scholar at Tembelani High School at your locality.  You are from a large family of seven children who are in the custody and care of your grandmother.  Your mother lives in Cape Town where she is employed and you do not have adequate or frequent contact with her.  Your grandmother cares for herself and the seven grandchildren with the assistance of an old age grant, the money sent by your mother, and a foster grant that is paid for two of the children.  You grew up without the benefit of knowing a father figure as your father died when you were two years old.  You do not have previous convictions.

THE NATURE OF THE CRIME

[5]          It is a cancer in this society to see young people who resort to extreme forms of violence as a first means of dispute resolution.  In many circumstances such violence leads to a loss of life.  A person’s right to life is a fundamental right entrenched in the Bill of Rights in the Constitution, however despite this, youths continue to take life in a very callous manner and with the slightest provocation.

[6]          Mr Jairam, who appears for the state has submitted that the murder was perpetrated in a brutal and vicious manner where the deceased was stabbed repeatedly, +/- 20 times.  Some of the blows inflicted were so powerful that some of the deceased’s ribs were fractured and two others were severed.  Mr Jairam has submitted that, the final moments of the deceased must have been of pure shock and pain.

[7]          Although it was contended by Mr Magqabi, your legal representative on your behalf that you stabbed the deceased in defending yourself against an attack he initiated, it is clear from the evidence before court that the attack was a revenge attack as the deceased had assaulted you earlier that day.

THE INTERESTS OF SOCIETY

[8]          Far too often in this society youths turn to violence as a first step in dispute resolutions.  These youths are normally young men of high school age.  Society can only demand of the courts to intercede to stop these youths from this senseless violence.  The courts are bound to intercede in a manner that would give the community at large, confidence in the law and deter would-be offenders.  The court will also attempt to balance societies’ need for retribution with its need to rehabilitate young offenders.

THE PURPOSE OF SENTENCE

[9]          The purposes of sentence are deterrent, preventative, reformative and retributive[3].  Sentences should thus serve to deter others from committing similar offences and crime in general.  In respect of retribution, a court takes account of society’s moral outrage at the nature of particular crimes and the frequency thereof.  An accused will also be provided with the opportunity for rehabilitation, wherever possible.  However, this must be balanced against the necessity of a long term of imprisonment because of the seriousness of the crime.  If sentences for extremely serious offences are unjustifiably lenient public confidence in the justice system may be undermined.

CRIMINAL LAW AMENDMENT ACT 105 OF 1997

[10]       The Criminal Law Amendment Act 105 of 1997 prescribes specific periods of imprisonment for particular crimes.  Thus if a murder is premeditated the prescribed sentence is life imprisonment.

WAS THE MURDER PLANNED OR PREMEDITATED?

[11]       A central question in sentencing is whether the murder was planned or premeditated.  Both counsel have referred the Court to the cases of S v Raath[4] and S V Mveleni[5] and I thank them for doing so.

[12]       Although, premeditation has for many years been accepted as an aggravating factor in the case of murder[6], it has not been authoritatively defined, either in the case law or statutorily.  Whether a murder was premeditated depends on the facts of each case.  And indeed there must be evidence that the murder was premeditated[7].

[13]       Matthew A Pauley has penned an article entitled “Murder by Premeditation”[8] in which he dissects the meaning of premeditation in the American criminal case law.  He remarks that the fact that American jurists have disagreed so severely on the issue of premeditation shows how difficult it is to define this concept.  I will not make an attempt to do so in this judgment.  Instead, I am persuaded to follow the Anderson approach to premeditation from the case of People v Anderson[9].  The court in Anderson went on to describe three types of evidence that can be used to prove premeditation and deliberation.

“i)         Facts about how and what the defendant did prior to the actual killing which show that the defendant was engaged in activity directed towards, and explicable as intended to result in the killing.  “Planning activity”.

ii)            Facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a “motive” to kill the victim, … [and]

iii)           Facts about the nature of the killing from which the jury could infer the “manner” of killing was so particular and exacting that the defendant must have intentionally killed according to a “pre-conceived design” to take the victims life in a particular way.”

PLANNING ACTIVITY

[14]       Mr Jairam for the state submits that the murder was premeditated.  He submits that you sought revenge from the deceased, for his assault on you and this was aggravated by the fact that you were not helped by the police.  You therefore decided to exact retribution by going to the deceased’s home and took the law into your own hands.  You decided to arm yourself and lay in wait for the deceased to ambush him when he returned home.  He supports this submission with Meta’s statement who says that upon seeing the deceased you exclaimed, “Here is the person I have been looking for, for a long time”.

[15]       Mr Magqabi on the other hand argues on your behalf that there is no evidence before the court to indicate that in fact that you went to the deceased’s home with the intention to kill him.  Furthermore, that later when you did not find him at his home you decided to ambush him on his way home.  I agree with Mr Magqabi that the evidence before Court is that you went to the deceased’s home to retrieve your blanket.  There is no evidence that you went there with the intent to kill the deceased.  Secondly when you and your brother parted there is a lacuna in the evidence regarding your activities thereafter until you meet the deceased and Meta.  There is no evidence that you were out to ambush the deceased.  There is therefore no evidence that you engaged in “planning activity” to kill the deceased.

“MOTIVE”

 

[16]       There is consensus between the state and your counsel that the attack on the deceased was in all probability motivated by the earlier encounter where the deceased had assaulted you.  Therefore, I agree that there was “motive”.

PRE-CONCEIVED DESIGN

[17]       The post mortem report indicates the “manner” of the killing was an explosion of violence that negates the notion that this was a carefully planned premeditated murder.

[18]       Therefore, I am unable to find that the murder was premeditated and therefore the prescribed minimum sentence of life imprisonment does not apply. 

[19]       Criminal Law Amendment[10] Act (‘CLA Act’) prescribes specific periods of imprisonment for certain crimes.  In respect of murder that is not premeditated or planned a sentence of imprisonment for fifteen years is prescribed.  A Court may however depart from the prescribed sentence if there are substantial and compelling circumstances that justify the imposition of a lesser sentence.  In assessing whether such sentence is justified the Court will take account of any aggravating factors and the nature and extent thereof.

[20]       The Supreme Court of Appeal has stated that the prescribed periods of imprisonment in the CLA Act are to be considered as ordinarily appropriate for the crimes specified therein and are not to be departed from lightly.[11]

ARE THERE SUBSTANTIAL AND COMPELLING CIRCUMSTANCES?

[21]       Mr Magqabi submitted that alcohol in conjunction with your youth played a role in the commission of this offense.  In S v M[12] the court was required to consider the role that the influence of alcohol had played on the accused in its determination of an appropriate sentence.  Nienaber JA stated:

“Liquor can arouse senses and inhibit sensibilities.  It is for the State to discount it as a mitigating factor, to show that it did not materially affect the appellant’s behaviour.”

He went on to state:

“The case is on the borderline.  But in the end one cannot ignore the possibility that the liquor the appellant had consumed during the day, combined with his immaturity, impaired his faculties and loosened his grip on events.  He undoubtedly had the volition to act.  He knew what he was about.  But he was less in command of himself than he would have been if he had not been drinking.  And in the final analysis one cannot confidently say that it did not contribute to the unfolding of the events ending in the death of the deceased.”

[22]       You had consumed alcohol on that night and I have no doubt that the alcohol affected your immature mind and diminished your moral blameworthiness.

[23]       Mr Jairam for the state conceded that it was difficult in the circumstances to argue that there were no substantial and compelling circumstances in light of the fact that you were 22 years old when you committed the crime and you had no previous convictions.  He indicated that normally murderers graduated to that offense and normally had a list of previous convictions.  The fact that you have none is significant.

[24]       Mr Jairam has submitted, and correctly so, that the brutality of the attack is an aggravating factor.  Such brutal behaviour calls for a severe sentence and a long term of imprisonment is appropriate.  However, there are mitigating factors.  These are:

a)            Your personal circumstances.  You are young, 24 years old.  Your background cannot be described as ideal and you were a scholar when you were arrested.

b)            Until this murder you had not been convicted of any other criminal activity.

c)            The combination of alcohol and your youth played a role in diminishing your moral blameworthiness.

d)            When you attempted to report the prior incident to the police you were chased away at the police station instead of assisted.

[25]       In my view, these are substantial and compelling circumstances that justify a lesser sentence than the minimum prescribed sentence.  The sentence imposed satisfies the needs of society and the accused.  The Court also exercises a measure of mercy.

 

SENTENCE

In the result, after weighing all the relevant factors, I consider the following sentence appropriate.

           

“You are hereby sentenced to imprisonment for 10 years”.

 

 

SJ SWARTBOOI                                                                                                              

ACTING JUDGE OF THE HIGH COURT   Date: 07 October 2010

Appearances:

 

For the State                                          :      Mr Jairam

 

For the accused                        :                  Mr Magqabi

---