South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: SS313/00

DATE:2002-02-15

In the matter between:

THE STATE

and

HEVISON FUNDINI NOYAHUNGU

SENTENCE

WILLIS J: It is well established in these courts, and reflects the accumulated wisdom of many generations, that sentence should fit the criminal as well as the crime, be fair to the state and to the accused, and be blended with a measure of mercy. It must also reflect the interests of society.

The accused is 39 years of age. He is the father of some young children. He was earning between R500 and R600 per fortnight working as a painter. His highest standard of education was Standard 5.

The accused was known to Mr Nelson, who employed the deceased. The deceased was the accused's customary law wife. Mr Nelson described the accused as a nice guy. He said that he liked him, that he was well mannered and hard working. He said that he held him in high regard. He had employed the accused to do work for him, and was aware of the fact that the accused would accompany the deceased into his home to babysit his grandchild.

The accused has no previous convictions. It is a factor in his favour that he has been released on bail and stood his trial.

In addition to what I have said in the opening lines of this judgment, sentence also has five important functions: (11 it must act as a general deterrent, in other words it must deter other members of the community from committing such acts, or thinking that the price for wrongdoing is worthwhile; (2) it must act as a specific deterrent, in other words it must deter this individual from being tempted to act in such a manner ever again; (3) it must enable the possibility of correction, unless this is very clearly not likely; (4) it must be protective of society, in other words society must be protected from those who do it harm; (5) it must serve society's desire for retribution, in other words society's outrage at serious wrongdoing must be placated.

If one looks at the accused's history and the circumstances surrounding this case, in so far as one is able to glean them, it is clear that from the point of view of specific deterrence, correction and protecting society, a very lengthy period of imprisonment is not warranted. On the other hand, if one has regard to the principle of general deterrence, and placating society's outrage at crime of this kind, then a lengthy sentence is warranted. I have no doubt that the community as a whole cries out aloud for a lengthy and severe sentence in a case such as this. A balance has to be struck. Finding that balance is never easy. That balance is not static. In other words, a sentence which might have seemed appropriate a few years ago may no longer be appropriate in changed circumstances today.

There is, as will appear clearly from what I have said at the beginning of this judgment, much that operates in the accused's favour. I accept that he probably acted in a moment of anger or emotional disturbance. Nevertheless, we live in a society where family violence is a major concern.

Concern about levels of crime, in particular crimes such as murder, has escalated in recent years. This is reflected inter alia in the Criminal Law Amendment Act 105 of 1997, which provided for various compulsory minimum sentences. Daily we are made aware in the media of the strong view that crimes against women must be severely punished. I have no doubt that there is a sense in the community that women too easily fall victim to the violence of those men to whom they are closest.

The solution to these high levels of crime obviously does not lie in severe sentences alone. There are other factors that have to be addressed. Nevertheless, clearly lenient sentences, where husbands, even if in a moment of anger or emotional disturbance kill their wives, have not worked. Consequently, I believe that I would be failing in my duty as a judge if I did not in balancing the various factors lean to some extent in favour of severity. After all, if judges are out of tune with the sentiments in their community, they can hardly serve that community properly.

This crime of murder committed by the accused against his common law wife falls under Part 2 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997. In terms of section 51(2)(a)(i) a minimum sentence is prescribed by legislation of 15 years. This section is saved by the provisions of subsection (3), which permits a lesser sentence if there are substantial and compelling circumstances which justify the imposition of a lesser sentence. In other words, it seems to me that the legislature has prescribed for so-called ordinary crimes of murder a minimum sentence of 15 years, unless there are substantia! and compelling circumstances.

By ordinary crimes of murder I mean to indicate crimes that were not planned or premeditated, a murder committed in the course of a rape or robbery, or a murder committed by some syndicate or group of persons acting in the execution of a common purpose or conspiracy. In my view there are therefore clearly no substantial and compelling circumstances which warrant a sentence of less than 15 years.

The question which then arises is whether a sentence somewhat in excess of 15 years would be appropriate. As I have indicated, there are factors which operate in the accused's favour. On the other hand it has to be borne in mind that he did not take the court fully into his confidence. He sought to avoid a conviction by inventing a fanciful story that has been rejected. He pulled the trigger of the firearm no less than eight times. He pumped no fewer than six bullets into the body of his wife. Furthermore, although I found that he did not act in a premeditated fashion, if I am to accept in his favour, as I have done, that his relationship with his wife was sorely troubled at the time, then it was an exceptionally reckless thing to do to take a firearm with one when one went on a visit. It would be fascinating to see some statistics which would compare the number of instances where a firearm purchased far self-defence was used in self-defence, and the number of times where such firearm is used to commit a crime of family violence. As far as I am aware, no such statistics are at the moment available, but I would suspect that many firearms purchased originally for the purpose of defending a person and his family end up being used against that family and against the person who purchased it himself. I think it would not be inappropriate for me to indicate that I am one of those persons who believe that gun control is urgently necessary in this society, and this fact will be reflected in my sentence.

Taking all these factors into account, I am of the view that a sentence somewhat in excess of 15 years would indeed be appropriate.

For the murder you are sentenced to 18 years' imprisonment. You are declared unfit to possess a firearm. The firearm which you used to commit this crime is declared forfeited to the state.

—oOo—