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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: CA&R 128/2014

Date heard: 17 September 2014

Date delivered: 18 September 2014

In the matter between

SITHEMBISO MABHUTI MAJESI                                                                              Appellant

And  

THE STATE                                                                                                            Respondent

Appeal against sentence – appellant convicted of two counts of murder committed when he was 15 years of age – regional court finding that only appropriate sentence is one of long term imprisonment in respect of each offence – submitted on appeal that failure to ameliorate cumulative effect of sentences resulting in shockingly severe sentence – state conceded that sentence too severe and that failure to order portion of sentences to run concurrently resulting in unreasonable exercise of discretion warranting interference on appeal – appeal partially successful – sentence of 13 years for each count of murder confirmed – portion of sentence on second count ordered to run concurrently with sentence on first count – effective sentence of 20 years imposed.

JUDGMENT

GOOSEN, J.

[1] The appellant pleaded guilty to 2 counts of murder before the regional court sitting at port Elizabeth. He was sentenced to 13 years imprisonment on each count. No portion of the sentences imposed was ordered to run concurrently and accordingly he was sentenced to an effective 26 years imprisonment.. Leave to appeal was granted by the magistrate.

[2] The offences were committed on 6 May 2007 and 22 March 2008 respectively. The appellant was born on […] M[….] […] and he was therefore [….] years old at the time of the commission of the murders.

[3] The deceased in the first count was the appellant’s [….]. She died as a result of multiple stab wounds penetrating the neck, chest and lower abdomen. She was [….] years of age at the time of death. The deceased in the second count of murder was a [….]-year-old [….] who was attacked during a burglary at her house. She died of multiple as a result of multiple stab wounds to the chest left arm and inner thigh. In both instances the bodies of the deceased were found in a semi-naked state.

[4] In his plea of guilty the appellant stated that on the night of the first incident he met his [........] when returning from a tavern where he had been drinking. He apparently found his [........] in the company of another man about whom he had heard rumours regarding his relationship with his [........]. He got into an argument with his [........] and when she picked up a stone he grabbed hold of it and threw it away. He became very angry. He then took out his knife and stabbed. He said he did not know where on her body he had stabbed her or how many times. He however admitted the post-mortem findings which indicated multiple stab wounds to the deceased’s neck, her chest and lower abdomen.  

[5] In regard to the second count of murder he explained that he was in the company of a person by the name of Koko when they had decided to go and steal a DVD player from the home of the deceased. He took a screwdriver along with him. When they entered the house the deceased was at home and she confronted them. The appellant then took the screwdriver and stabbed the deceased multiple times. He again said he was unable to state where he had stabbed the deceased or how many times. The post mortem report, which was admitted, indicated numerous stab wounds to the deceased’s chest, her left arm and on her inner thigh.

[6] The magistrate found that due to the appellant’s age the prescribed minimum sentences did not apply. In sentencing the appellant the magistrate gave consideration to an assessment report prepared by a social worker. That report provided details of the personal circumstances of the appellant, his social and family circumstances as well as the assessment of risk that the appellant poses to society.

[7] The assessment report paints a very bleak picture. The identity of the appellant’s father is unknown. His mother died when he was [….] years old. He was the only child. They were then living in the Transkei. After the death of his mother he was brought to Port Elizabeth to live with his maternal grandmother. Right from the outset he manifested behavioural problems. He would regularly play truant from school and when he was not at school would involve himself in fights with other children. From a very young age he started using alcohol and drugs. His maternal grandmother was unable to impose any discipline upon him. The community regarded him as a troublemaker and as a result of the appellant’s action the community threatened to burn down the grandmother’s home because of her association with the appellant. According to the assessment report, the grandmother and her family are relieved by the fact that appellant is in prison.

[8] The appellant dropped out of school in grade 7. He did odd jobs such as cutting grass. He also worked as a taxi conductor and even as a driver but soon fell afoul of the traffic authorities. He admitted to using alcohol and drugs and admitted to the behavioural problems which were described by his maternal grandmother.

[9] According to the assessment report the appellant displayed no remorse for his actions. The social worker who conducted the assessment considered that the appellant posed a significant danger to society and she considered that, despite his youth, long-term direct imprisonment was the only appropriate sentence.

[10] The magistrate considered all of these factors in imposing sentence and came to the conclusion that the only appropriate sentence was one of long-term imprisonment in respect of each of the counts of murder.

[11] It was not submitted on appeal that the magistrate had erred or misdirected himself in this regard. The thrust of the appeal was directed at the cumulative effect of the sentence and in particular that a sentence of an effective 26 years imprisonment imposed upon a child is severe and not in line with the provisions of section 28 (1) (g) of the Constitution and justifies interference on appeal.

[12] It was argued that in keeping with the decision in Centre for Child Law v The Minister of Justice and Constitutional Development and others 2009 (2) SACR 477 (CC) that the trial court was required to consider the shortest appropriate period of imprisonment. In so far as the trial court did not take into account the cumulative effect of the sentences imposed, the trial court erred and accordingly imposed a sentence which is shockingly inappropriate.

[13] Counsel for the state conceded that the cumulative effect of the sentence imposed upon the appellant is shockingly inappropriate and submitted that said sentence should be ameliorated by ordering a portion of the sentences imposed to run concurrently. The state accordingly conceded that this court ought to interfere on appeal. That concession was very fairly and properly made.

[14] We are however in agreement with counsel for the state that the sentence imposed in respect of each of the offences is indeed an appropriate sentence. When regard is had to the very serious nature of the offences as well as the circumstances in which they were committed the only appropriate sentence is indeed one of long-term imprisonment in respect of each of the counts. The appellant is clearly a very dangerous individual who poses a significant threat to society. In these circumstances the interests of society demand the imposition of a lengthy period of imprisonment. In our view an effective sentence of 20 years imprisonment would be an appropriate sentence, since it would protect the community for as long as is reasonably possible. Whilst allowing for an opportunity to bring about some corrective behaviour in the appellant. Although the prognosis is, in our view, bleak, we cannot lose sight of the fact that the appellant was only 15 years of age at the time of the commission of these offences and that he has been in custody since his arrest sometime shortly after the second offence was committed in March 2008.

[15] In the circumstances I make the following order:

(a) The appeal succeeds in part.

(b) The sentence of 13 (THIRTEEN) years imprisonment imposed in respect of each of the counts of murder is confirmed;

(c) It is ordered that 6 (SIX) years of the sentence imposed in respect of the second count, shall be served concurrently with the sentence imposed on the first count.

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G. GOOSEN

JUDGE OF THE HIGH COURT

SWARTBOOI, AJ.

I agree.

 

S. SWARTBOOI

ACTING JUDGE OF THE HIGH COURT

 

APPEARANCES:   For the Appellant

Ms Mtini

Gra.hamstown Justice Centre

 

For the Respondent

Adv. D. Els

Director of Public Prosecutions

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