---

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

 

Case No. 63/2021

 

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED No

DATE: 12 November 2021

 

In the matter between:

 

THE STATE

 

versus

 

MZOTSHO, ANDILE

 

JUDGMENT- SENTENCE

 

MILLAR, A J

 

1.            On 11 November 2021 the accused was convicted on a single count of murder. The grounds upon which he was convicted are set out in the judgment delivered that day.

 

2.            “Coming now to the question of sentence, this is undoubtedly the most difficult part of the whole trial. This is so, because there are so many disparate interests and considerations to take into account, which the court must try and balance in arriving at a sentence that is fair in all the circumstances. “Punishment must fit the crime as well as the criminal; be fair to society, and be blended with a measure of mercy according to the circum­stances,” as it was put in a well-known passage by Holmes JA in S v Rabie in 1975 (4) SA 855 (A) in the Appellate Division and followed in many cases since then”[1]

 

3.            The crime of which the accused has been convicted is an offence referred to in Schedule 1 of the Criminal Procedure Act 51 of 1977.

 

4.            The Criminal Law Amendment Act 105 of 1997 prescribes minimum sentences.

 

5.            The prescribed minimum sentences for murder are distinguished – for planned or premeditated murder[2], the minimum sentence to be imposed is life imprisonment and for murder that was neither planned nor premeditated, 15 years imprisonment.[3] In both instances the court must deviate from the imposition of the minimum sentence if “substantial and compelling circumstances”[4] are found to exist. In the present case the accused was convicted of murder that was neither planned nor premeditated.

 

6.            In this regard it was held in S v Malgas[5] that “Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances. ….. But for the rest I can see no warrant for deducing that the legislature intended a court to exclude from consideration, ante omnia as it were, any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders. The use of the epithets ‘substantial’ and ‘compelling’ cannot be interpreted as excluding even from consideration any of those factors….. What they are apt to convey, is that the ultimate cumulative impact of those circumstances must be such to justify a departure. It is axiomatic in the normal process of sentencing that while each of a number of mitigating factors when viewed in isolation may have little persuasive force, their combined impact may be considerable."

 

7.            No witnesses were called in respect of sentence. The State and the Defence relied on the evidence led at the trial and that set out in the judgment on conviction.

 

8.            The personal circumstances of the accused are that “ he was married to the deceased and that they had been together for about 12 years. They had 3 children, two boys and a girl. The eldest boy was not his biological child and was only a few months old when he had met the deceased. He nevertheless regarded this child as his own. The second eldest child is a daughter and the youngest a son. Their present ages are 14, 10 and 6 respectively. The family had 2 abodes in the yard where they all lived – 1 in which the children slept and one which he shared with the deceased. Both he and the deceased worked although he only did so from time to time. His work was the installation of blinds”[6].

 

9.            It was argued for the accused that he was genuinely remorseful, this submission being made on the strength of his having been truthful about having stabbed the deceased and not having wasted the courts time by calling unnecessary witnesses. It was argued for the state that this was not consonant with genuine remorse but rather the prospect of facing an unanswerable case.

 

10.         It was held in S v Matyityi[7] that:

 

“After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; whether he or she does indeed have a true appreciation of the consequences of those actions.”

 

11.         On a careful consideration of all the facts and evidence in this case, I find that while the accused did demonstrate some remorse, this was in the context contended by the State and so this is to my mind a neutral factor in the consideration of the sentence to be imposed.

 

12.         It was argued on behalf of the State that the crime for which the accused is to be sentenced is part of the scourge of gender-based violence and femicide which afflicts our country. The proposition was advanced on the basis that the deceased victim was a woman and wife of the accused. It was argued that notwithstanding any personal circumstances that may be mitigating factors, the particularly violent and personal nature of the attack upon the deceased was a weighty aggravating factor and called for the imposition of the minimum sentence[8]

 

13.         The accused is a first offender and has been in custody awaiting trial for 5 months[9]. I have considered the circumstances of the crime of which the accused has been convicted and all the mitigating and aggravating factors advanced. It was argued for the defence that a custodial sentence of no more than 5 years should be imposed. The State also argued for the imposition of a custodial sentence but contended that it ought to be of a duration befitting the crime.

 

14.         The crime of which the accused has been convicted is a serious crime. It was held in S v Swart[10] that “serious crimes will usually require that retribution and deterrence should come to the fore and that rehabilitation of the offender will consequently play a relatively smaller role.”

 

15.         On consideration of both the mitigating and aggravating factors, I am of the view that a custodial sentence is indeed appropriate in the present matter.

 

16.         However, the mitigating factors considered do not establish either “substantial or compelling” circumstances which justify the imposition of a term of imprisonment which is shorter than the prescribed minimum period of 15 years for the murder conviction.

 

17.         On a consideration of all the circumstances I am of the view that the prescribed minimum sentence is an appropriate one in the present case.

 

18.         In the circumstances I make the following order:

 

18.1   The accused is sentenced on count 1 for the murder to a period of imprisonment of 15 (FIFTEEN) years.

 

 

 

A MILLAR

ACTING JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

 

HEARD ON:                                                 11 NOVEMBER 2021

JUDGMENT DELIVERED ON:                    12 NOVEMBER 2021

 

COUNSEL FOR THE STATE:                     ADV. D BARNARD

INSTRUCTED BY:                                      NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

REFERENCE:                                             10/2/11/1 -2021/88

 

COUNSEL FOR THE DEFENDANT:          MS. D KUNENE

INSTRUCTED BY:                                      LEGAL AID SA

REFERENCE:                                             JOHANNESBURG JUSTICE CENTRE

---