South Africa: Eastern Cape High Court, Grahamstown

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, GRAHAMSTOWN)

CASE NO: CC 07/2015

In the matter between:

THE STATE

vs

ABONGILE MAJOR THAFENI.............................................................................................Accused

SENTENCE

MAKAULA J:

[1] The chief post mortem findings are recorded as follows by Dr Lungile Lawrence Mjomba;

“Strangulation and raped.  Swollen face.  Bleeding through the vagina.  Bruises around the neck.”

The cause of death is recorded as ‘airway obstruction due to strangulation.’

[2] It is clear that she was raped and then killed.  I have already found the accused to be the person responsible for the rape and killing of the deceased after he gained entry by breaking into the deceased house.  It is a pity that the accused did not come up clean even though the evidence of the DNA had linked him to the commission of these offences.  I am therefore not privy to the circumstances of how the deceased died apart from the post mortem findings.  The motive for the killing is not clear because the accused did not tell the truth. 

[3] At the time of the incident, the deceased was 90 years old.  According to a sworn statement made by L[…] N[…] who is a daughter of the deceased and aged 59, the deceased is survived by three (3) children aged 62 years, 59 years (L[….]) and 28 years.  The deceased has 7 grandchildren and a great grandson, S[…]. 

[4] It is everybody’s wish that if one lives for as long as the deceased, one should better die of natural causes than to die as a result of being killed.  The actions of the accused are despicable to say the least.  It is now everybody’s guess to imagine how she died.  It is undoubtedly so that the deceased had a traumatic experience of being raped at her age by a person who is old enough to be her great grandson, only to be killed thereafter.  Why the deceased was killed by the accused, is everybody’s conjecture.

[5] The accused was born on 6 June 1992.  He is married to Loliwe and they have three (3) daughters born in 2010 and the twins in 2014.  He left school in 2009 while doing standard 7.  He is self-employed as a builder, carpenter and a tiler.  He was earning about R5 000.00 from his jobs monthly.  He is responsible for the maintenance of his family i.e. wife and children.  He is a first offender.  Mr Geldenhuys, on behalf of the accused submitted that all the personal circumstances of the accused taken together constitute substantial and compelling circumstances.

[6] The actions of the accused are not commensurate with his age.  As a married young man who has children, the accused well appreciated the consequences of his action.  He had, at the time, his wife with whom he was legally allowed (with her consent) to fulfil his sexual desires.

[7] I cannot in anyway express how appalling and barbaric the actions of the accused were.  He directed his actions to a vulnerable old lady who definitely by virtue of her age could not defend herself.  She was a soft target so to speak.  He broke to her house and presumably raped her before killing her.  Common sense however dictates (in the absence of the accused explanation) that the accused would not have raped a dead person.  The post mortem report reveals that the deceased bled through her vagina.

[8] It is trite that traditional mitigating factors at times do constitute substantial and compelling circumstances.  But in deserving cases, as in this one, such factors have to give way to aggravating factors.  The accused has not shown any remorse even when common sense should have prevailed.  It is a pity that the consequences of the actions of the accused are not only going to affect him.  His young wife and children shall grow for a considerable long time without a husband and father respectively.

[9] Having regard to the circumstances of this matter, accused personal factors and the interest of the community, I am of the view that the following sentences are appropriate.  

COUNT 1: Housebreaking with intent to rape

The accused is sentenced to undergo three (3) years imprisonment.

COUNT 2: Rape

The accused is sentenced to life imprisonment.

COUNT 3: Murder

The accused is sentenced to life imprisonment.

_________________________

M MAKAULA

JUDGE OF THE HIGH COURT

Counsel for the State: Advocate Obemeyer

Counsel for the Accused: Advocate Geldenhuys

Heard on: 14 April 2015

Delivered on: 16 April 2015