FORM A
FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN

PARTIES:  

THE STATE

v.

MLULEKI ELVIS JAXA					ACCUSED 	

•	Registrar: CASE NO: CC/10/2009		
•	Magistrate: 
•	High Court: 	EASTERN CAPE DIVISION

DATE HEARD: 		          26/02/2009 – 6/03/2009
SENTENCE DELIVERED:    	6/03/2009

JUDGE(S): 	PLASKET J
	
LEGAL REPRESENTATIVES –

Appearances:
•	for the State:        Adv. Obermeyer
•	for the Accused:    Adv. Geldenhuys	

CASE INFORMATION -             CRIMINAL
•	Sentence:   Count 1:  Life Imprisonment
•	                Count 2:  15 Years Imprisonment

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)

						CASE NO: CC10/09
						DATE HEARD: 26/04/09 – 05/05/09
						DATE DELIVERED: 06/03/2009
                                                                                           NOT REPORTABLE

In the matter between:

THE STATE

and 

MLULEKI ELVIS JAXA 					

SENTENCE

PLASKET J

[1] I convicted the accused of murder and of robbery with aggravating circumstances. It is now my task to impose appropriate sentences for these crimes. 

[2] The provisions of s 51 of the Criminal Law Amendment Act 105 of 1997 apply to both convictions. In terms of s 51(1), read with Part I of Schedule 2, the prescribed sentence for the murder conviction is, in the absence of substantial and compelling circumstances, life imprisonment. This is so because the offence was committed by the accused in committing robbery with aggravating circumstances and because it was planned or premeditated. 

[3] In terms of s 51(2) read with Part II of Schedule 2, the minimum sentence for the robbery with aggravating circumstances is, in the absence of substantial and compelling circumstances, 15 years imprisonment.  

[4] It is necessary, at the outset, to make a few observations about the imposition of sentence when the Act applies. First, it has been emphasised in S v Malgas 2001 (1) SACR 469 (SCA), at paragraph 8 that when sentencing for crimes specified in the Act, a court is required to ‘approach that question conscious of the fact that the legislature has ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily be imposed …’. While the Act shifted the emphasis to ‘the objective gravity of the type of crime and the public’s need for effective sanctions against it’ discretion to deviate from the prescribed sentence was granted to courts ‘in recognition of the easily foreseeable injustices which would result from obliging them to pass the specified sentences come what may’.  

[5] A court may deviate from the sentences prescribed if ‘substantial and compelling circumstances’ are present. In Malgas, at paragraph 9, it was held that it is impermissible to deviate from the prescribed sentence ‘lightly and for flimsy reasons which could not withstand scrutiny’. Apart from this, however, all factors relevant to determining sentence remain relevant when the Act applies and a sentencing court must look to the ‘ultimate cumulative impact’ of all of these factors in order to determine whether a departure from the prescribed sentence is justified.  

[6] In Malgas, at paragraph 22, the court held that when a court is convinced that the imposition of the prescribed sentence would be unjust or ‘disproportionate to the crime, the criminal and the legitimate needs of society’ that in itself constitutes substantial and compelling circumstances. See too S v Fatyi 2001 (1) SACR 485 (SCA), at paragraph 5.  

[7] The effect of Malgas (and the related decision of the Constitutional Court in S v Dodo 2001 (3) SA 382 (CC)) was examined by Nugent JA in S v Vilakazi [2008] ZASCA 87. At paragraph 14 he observed that it is ‘only by approaching sentencing under the Act in the manner that was laid down by this court in S v Malgas … that incongruous and disproportionate sentences are capable of being avoided’ and that by ‘avoiding sentences that are disproportionate a court necessarily safe-guards against the risk – and in my view it is a real risk – that sentences will be imposed in some cases that are so disproportionate as to be unconstitutional’.  

[8] Nugent JA set out how a court is to approach the imposition of sentence when the Act applies, stating, at paragraph 15:  
‘It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence. The Constitutional Court made it clear that what is meant by the “offence” in the context … “consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender”. If a court is indeed satisfied that a lesser sentence is called for in the particular case, thus justifying a departure from the prescribed sentence, then it hardly needs saying that the court is bound to impose that lesser sentence.’  

[9] I turn now to consider the factors of relevance to sentencing -- usually expressed as a triad of factors comprising of the interests of society, the nature and seriousness of the crime and the personal circumstances of the accused.  

[10] Society has a legitimate interest in seeing that those who devastate the lives of people through the use of violence, and who use violence to steal from others are appropriately punished and that the punishment imposed reflects societal censure and an appropriate measure of retribution. In S v Marhotya and another ECD 2 March 2007 (case no. CC14/07) unreported, at paragraph 6, I said the following:
‘The problem of high levels of crime and, in particular, of crimes of extreme violence and brutality remains a burning problem in this country. Society is entitled to demand protection from the State from the scourge of criminality, and retribution within the limits of the law when crimes have been committed.’

[11] The interests of society are particularly relevant when the victim of violence is a member of a vulnerable group, whether he or she be an old person, a very young person, a disabled person or, as in this case, a woman. See in this respect, S v Marhotya and another supra, at paragraph 11 and S v Dyantyi ECD 12 December 2008 (case no. CC 95/08) unreported, at paragraph 16.

[12] The crimes committed by the accused were very serious in their own right and are also characterised by a number of aggravating features. The deceased was killed in a most brutal, cold blooded and callous manner. She was subjected to the application of blunt force to her head and neck and then stabbed 12 times in the chest. Six of those stab wounds penetrated vital organs such as her heart and left lung. Her throat was cut so that her left jugular vein was severed. These injuries were all targeted at vulnerable parts of her body and there is no evidence of stab wounds that are not, such as one may find if the attacker was acting in a wild frenzy. The conclusion I draw is that the attack on the deceased was carefully and consciously directed.

[13] The offences were planned and pre-meditated. The accused spoke to others about his plan to steal from the Post Office and tried to enlist them as his co-perpetrators. The plan entailed confronting the deceased when she was most vulnerable: when she was the only person left at the Post Office. That the application of physical violence on the deceased was part of the plan is an inescapable conclusion to be drawn from the fact that the accused armed himself with a knife from his home. It must have been part of the plan to kill the deceased. The success of the plan depended on this because, if she was not silenced, she would identify the accused who was her employee.  From this and the nature and location of the deceased’s wounds, it can be concluded that the accused had the direct intention to kill the deceased. I may add that the plan would have had no chance of success if the accused had either covered his face or otherwise disguised himself: in these circumstances, the deceased would not have allowed him into the Post Office. He cynically took advantage of the deceased’s trust to gain entry into the Post Office, and then killed her.  

[14] The fact that the accused worked at the Post Office but robbed it and killed the Post Mistress is a further aggravating factor: in a most fundamental way he betrayed the trust reposed in him by virtue of his employment and as a colleague of the deceased. He was, furthermore, gainfully employed when he committed the offences. The motivation for committing the offences was simply greed. The robbery, on its own, was a serious one in that a substantial amount of money was stolen as well as items of significant value, such as cellular phones.  

[15] Finally, the court heard evidence that the deceased ran the Tarkastad Post Office efficiently and that she was a respected and well-liked member of the Tarkastad community. That counted for nothing as far as the accused was concerned: the life of a valued member of the community was callously taken in order to facilitate the theft of property.  

[16] I turn now to the personal circumstances of the accused. He is a first offender.  He was, at the time of the commission of the offences, 31 year old. He is married but it is common cause that the marriage is not a happy one. He has two children, a six year old by his wife and a three year old by another woman. He supported his children. He has completed grade 12 at school and also completed a one year course entitled Entry to Business Management at the Ikala College, Queenstown. He worked for the Post Office in Tarkastad until his arrest.  

[17] The fact that the accused was gainfully employed is double-edged. On the one hand, it is indicative of him being a productive member of society but, on the other, it affords evidence of greed as the motive for his crimes. There are a great many people who are far worse-off than the accused who do not, despite their need, commit crimes.    
 
[18] Subject to the qualifications that I have listed, it can be accepted that the personal circumstances of the accused are, generally speaking, favourable. Is that sufficient, however, to constitute substantial and compelling circumstances? It has been noted above that the Malgas case commented on the fact that the Act has brought about a sharper focus than before on the objective gravity of the offence when courts impose sentence. Ultimately, the personal circumstances of the accused must be weighed up with the nature and seriousness of his conduct.

[19] In S v Obisi 2005 (2) SACR 350 (W), at paragraph 13, a matter in which the appellant had senselessly shot the deceased during the course of a robbery, Makhanya J stated that ‘the nature of the crime, the brazenness, the callousness and the brutality of the appellant’s conduct shows that he attaches no value to other people’s lives, or physical integrity, or to their dignity’. Much the same can be said of the accused in this matter. 

[20] In S v Stonga 1997 (2) SACR 497 (O) the appellant had been convicted of raping and murdering an eight year old girl by strangling her and then dumping her body in a toilet. He was 25 years old and a first offender who had co-operated with the police throughout. He had been sentenced to 12 years imprisonment for the rape and life imprisonment for the murder. It had been argued in an appeal against the sentence of life imprisonment that the trial court had overemphasised the interests of society at the expense of the personal circumstances of the appellant.

[21] Van Coppenhagen J held (at 501a) that the remorse that the appellant had shown when viewed against the callousness of his conduct paled in its significance as a mitigating factor. In dealing with the argument that the interests of society had been disproportionately elevated above the personal circumstances of the appellant, he stated (at 501b-e):
‘Geweldsmisdade en veral moorde het wat omvang daarvan betref, reeds dermate toegeneem dat die algemene publiek tereg om beskerming betoog. Wat die moord in die onderhawige geval nog meer grusaam maak, is dat die slagoffer ‘n agt-jarige weerlose kind was. Anders as om toevallig ook in die huis te wees waar die appellant was, het sy niks gedoen om die aanval op haar te provokeer of uit te lok nie.
Natuurlik is ‘n skoon rekord ‘n faktor wat as strafversagtend aangemerk word en normaalweg hoog aangeslaan word; maar as faktor moet dit in perspektief gestel word. Wanneer die dader as persoon geëvalueer word, speel sy gesindheid of motivering vir en by die pleging van die misdaad dikwels ‘n deurslaggewende rol. By beoordeling van die dader se gesindheid of motivering spreek sy dade dikwels luider as sy woorde.
Die appellant se gesindheid teenoor sy medemens, veral teenoor weerloses, word weerspieël deur die grusaamheid en die gevoelloosheid van sy optrede en wel dermate dat hy permanent uit die samelewing verwyder moet word. Om daardie doel te bereik moet hy as persoon ondergeskik aan die belange van die gemeenskap gestel word. ...’ 

[22] When I consider the nature and seriousness of the offences and weigh these against the personal circumstances of the accused, I am unable to conclude that his personal circumstances are weighty enough to justify a deviation from the sentences prescribed by the Act. They must, as Van Coppenhagen J said in Stonga, bow to the interests of society. I have also given consideration to whether those sentences would be unjust on account of them being ‘disproportionate to the crime, the criminal and the legitimate needs of society’ (to quote the Malgas case at paragraph 22). My conclusion is that, particularly because of the brutality involved and the callous way in which the offences were committed, the prescribed sentences are indeed appropriate.

[23] In the result the accused is sentenced to life imprisonment for murder and to 15 years imprisonment for robbery with aggravating circumstances.

_____________________
C. PLASKET
JUDGE OF THE HIGH COURT