Count 1: Murder, read with Section 51 and Schedule 2 of Act 105 of 1997

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1 IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL, DURBAN CASE NO. : CC 3/09 Umlazi CAS 983/12/08 In the matter between : STATE STATE and WELCOME MBONGENI HADEBE ACCUSED JUDGMENT ON SENTENCE KOOVERJEE AJ Introduction [1]The Accused has been convicted of: Count 1: Murder, read with Section 51 and Schedule 2 of Act 105 of 1997 Page 1

2 Count 2: a Contravention of Section 3, read with Sections 1, 103, 117, 120(1)(a) & 121 read with Schedule 4 of Act No. 60 of 2000 Unlawful possession of a 9 mm Norinco pistol and Count 3: a Contravention of Section 90, read together with Sections 1, 103, 117, 120(1)(a) & 121 read with Schedule 4 of Act 60 of 2000 Unlawful possession of 2 live rounds of 9mm ammunition [2]In its judgment the Court found that the Accused had murdered the Deceased by shooting him with the aforementioned pistol and that, when he handed it over to the police, it still contained two live rounds of ammunition. The law and certain salient considerations [3]In sentencing the Accused, what has to be considered is the triad consisting of the crime, the offender and the interests of society. (S v Zinn 1969 (2) SA 537 (A) at p540 F, per Rumpff JA with whom Steyn CJ and Ogilvie Thompson JA concurred). Page 2

3 [4]The sentence we impose, given the circumstances of this particular case, will have to be proportionate to the crime, the criminal and the needs of society (S v Malgas 2001 (1) SACR 469 (SCA)). [5]Certain minimum sentences are prescribed by statute on the convictions on Counts 1 and 2 (see s 51 of the Criminal Law Amendment Act 105 of 1997). The Court s discretion to deviate from such prescribed minimum sentences is not eliminated but rather limited by this Act. See S v Malgas, supra, which laudably considered this enactment, its effect and rationale, and concluded :- In short, the Legislature aimed at ensuring a severe, standardised, and consistent response from the Courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response. Page 3

4 (see the Judgment, in para 8) [6]In the result, a deviation from such prescribed minimum sentences must be justified by the sentencing Court s finding of the presence of substantial and compelling circumstances for the imposition of any lesser sentence 1. I shall return to this when dealing with each conviction on Counts 1 and 2. [7]The rationale for this enactment must not be lost sight of. Marais JA, in S v Malgas, supra, after examining the origin and development of this Act, dealt with the reasoning for its extended life-span, and aptly said the following :- That situation was and remains notorious : an alarming burgeoning in the commission of crimes of the kind specified resulting in the Government, the Police, Prosecutors and the Courts constantly being exhorted to use their best efforts to stem the tide of criminality which threatened and continues to threaten to engulf society. 2. This reasoning is apposite with resounding clarity to this case in today s South Africa. [8]Whilst sentencing has rightly been described as a lonely and onerous task, 3 we must guard against over-emphasising the effect of the crime and the underestimation of the Accused s person (S v Zinn, supra, at p ). 1 S v Malgas, supra; S v Thembalethu 2009 (1) SACR 50 (SCA); s 51 of the Criminal Law Amendment Act 105 of S v Malgas, supra, para 7 3 S v Malgas, supra, para 1 Page 4

5 [9]Terblance, the author of Guide to Sentencing in South Africa 2 nd Ed. at page 147 para states that the sentence should reflect the severity of the crime. In para 5 of the same page the author states : It is regularly stated that balance is an important consideration in sentencing. Balance in this context has been said to mean that the trial court should consider all the relevant facts, factors and circumstances evenly and strive for the attainment of all the purposes of punishment. [10]Against that background, I turn now to consider an appropriate sentence on each of the Counts that the Accused has been convicted of. Murder [11]I begin by considering the murder conviction. [12]The Accused s defence that the Deceased was shot as a result of them both grappling with the Deceased s firearm, shortly after the Deceased produced it and pointed it at the Accused was rejected by this court. The State s version has been accepted. In the result it follows that the Deceased was shot by the Accused in cold blood. 4 [13]That the Deceased was unarmed at the time, is an aggravating factor. Further aggravating factors are that the Deceased was, shortly before his argument with the Accused, apologetic towards Sikhumbuzo, and that the 4 S v Thathana 2008 (1) SACR 494 (W) Page 5

6 Accused took his firearm to the police and there pretended that the firearm was that of the Deceased, as he has now done before this court. [14]It is common cause that the Accused s arrest was precipitated by his own visit to the police station shortly after the murder. Ordinarily that would equate to a very telling and weighty mitigating factor. However, in casu, the Accused s visit to the police was in the pretence that he was the good Samaritan who brought the Deceased s firearm to hand to the police, on the understanding that the Deceased had died as per the Accused s version. That therefore is in no way a mitigating factor. [15]This court has had due regard to all the submissions made by the Accused s Counsel. In particular, the court is mindful of the fact that the Accused is a young man of 26 years of age, who has a young child of 1 year 3 months, and who supports his child and fiancé. He is a first offender. [16]Accused s Counsel endeavored to persuade this court that there were substantial and compelling circumstances present justifying the imposition of a lesser sentence than that prescribed as a minimum of 15 years imprisonment. In support, he submitted, inter alia that the Accused had no personal issue with the Deceased, that the shooting happened by chance and not by desire, and that Page 6

7 the Accused was provoked by the Deceased, and that the Deceased s alleged assault of two girls on the day before is what gave rise to this entire series of events. [17]For the reasons already exhaustively dealt with in our judgment on the merits, this court is not convinced that any of these constitute such substantial and compelling circumstances justifying a lesser sentence than that prescribed as a minimum. On the contrary some of these points raised by Accused s Counsel are by their very nature aggravating circumstances. The fact that the Accused did not have any personal issue with the Deceased, begs the question as to why the Accused fatally shot the Deceased? Is it only because he came to his friend Sikhumbuso s aid and because the Accused felt provoked by the Deceased? The provocation, even if accepted, does not in any way justify the fatal shooting. [18]There was no accepted evidence of such provocation and, in my view, it is fallacious to lay any blame for what transpired at the Deceased s door. [19] That was an act of execution rather than the impulsive reaction of a man beside himself with rage. In all the circumstances I would have regarded a sentence of 15 years imprisonment in respect of the conviction for murder as the Page 7

8 appropriate sentence. As that term is the equivalent of the prescribed minimum sentence no question of substantial and compelling circumstances within the context of section 51(3)(a) would have arisen. (S v Karolia [2004] 3 All SA 298 (SCA) at para 44). This Court embraces that reasoning and approach as being appropriate to the facts in casu. [20]Once the Deceased came to be shot, the Accused did not concern himself about the Deceased nor did he help to take the Deceased to hospital. They were both neighbours and knew each other. On the contrary, the Accused immediately took the gun and hurried off to the Police with the desire to protect himself foremost, reigning more supreme in his mind than the need to help the dying man just shot by him. [21]The fact that they argued and that vulgar words were possibly used by the Deceased towards the Accused must however be considered. The Accused s testimony is that they both were angry, argued and used vulgar words. [22]This incident must be seen in its correct context. All that happened, as we have found, is that the Deceased requested the Accused not to involve himself in an incident that did not relate to him. An argument ensued. The parties became angry. The Accused then pulled out his firearm, cocked it, and shot at the Page 8

9 Deceased, the second of two shots having felled the Deceased. Did the Accused, in these circumstances, summon the resolve of self-restraint. Evidently not. The callousness of the Accused s act, with an almost immediate attempt to cover-up his crime, sustained through this hearing, is indeed aggravating. [23]Inasmuch as the Accused is found not to have pre-meditated this crime of murder, he arrived at the scene armed with this unlicensed fire-arm, and his anger was triggered by a simple argument that he actively participated in, and such anger, in the absence of reasonable restraint turned to violence resulting in the death of the Deceased. [24]Counsel for the State has requested the Court to impose the minimum prescribed sentence of 15 (fifteen) years imprisonment in respect of the murder conviction. In order to arrive at an appropriate sentence the Court will keep the aforementioned guidelines in mind. [25]The Accused has been convicted of murder which is an extremely serious crime. The sentence should, inter alia, emphasise the sanctity of human life. [26]The events and its execution have been described in detail in the judgment. It will suffice to repeat that the Accused and his companion were not satisfied with the apology which the deceased had tendered to Sikhumbuso on three Page 9

10 occasions during that day and when they had met on the last occasion the Accused produced his gun and shot the Deceased at close range. [27]The Accused clearly took the law into his own hands to settle the dispute between the deceased and Sikhumbuso. Such unlawful conduct will not be tolerated. [28]The Accused displayed a total disregard for the sanctity of human life and shot the defenceless Deceased at short range with an extremely dangerous firearm. [29]He has not shown any remorse and persisted with his false version throughout the trial. [30]The local courts have to deal with many murder trials on a daily basis and the courts must impose sentences which will not only punish the offender appropriately but will also serve as a deterrent to others who may be similarly inclined. [31]The Deceased s family and the public, in general, look to the courts for protection. They expect of the courts to impose sentences that will punish Page 10

11 offenders appropriately and which will serve as a deterrent. If that does not happen they might take the law into their own hand with fatal consequences. [32]Death at the hands of those in possession of unlicensed firearms is common place in South Africa. Hence the justification for the recent amendment to the sentencing enactments, calling for enhanced sentencing jurisdiction (see S v Thembalethu 2009 (1) SACR 50 (SCA) at para 13). Murder in such circumstances is also common place. Such activity must be deprecated. [33]Daily one hears, and reads in the press of murders and in the result one hardly batters an eye on such news. This is unacceptable. Unlawful possession of a fire-arm and ammunition (Counts 2 & 3) [34]I turn now to consider the conviction on Counts 2 and 3, namely the Accused s being unlawfully in possession of a fire-arm and ammunition. [35]The Accused was in possession of a semi-automatic firearm. (See the Ballistic Report 5, paragraph 3.1. read with the Accused s s 220 Admissions 6 (paras 6-8); see also the evidence of the Accused and of Mr. Steyl). The firearm is an extremely dangerous weapon. 5 Exhibit D 6 Exhibit B Page 11

12 [36]We have already found such possession to have been unlawful. Accordingly, once it was proved that an Accused had been in unlawful possession of a firearm, and that the firearm was a semi-automatic one, the application of 7 the minimum sentences as prescribed in s 51(2) read with Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997, is automatically triggered 8. That, in the circumstances, is a period of 15 years for a first offence. [37]The imposition of such a minimum sentence is obligatory, unless this Court finds that substantial and compelling circumstances justifying the imposition of a lower sentence are present. We have agonised over this and have found none present. [38]On the contrary, and as already mentioned, the Accused arrived at the scene with his unlicensed firearm, and whilst we have not found any premeditation by the Accused, he clearly acted in no indecent haste. He pulled out his firearm and once he cocked it, he first shot towards the Deceased and at his feet and then directly at the Deceased s chest killing him. Nor was he threatened by the Deceased who was unarmed and apparently in an apologetic state towards Sikhumbuzo just before that. These we consider aggravating. [39]A further aggravating factor of substantial weight is that the firearm was used by the Accused, not in self-defence, but to kill the Deceased. 7 S v Thembalethu 2009(1) SACR 50 (SCA), at para 6 and 7 and in the headnote at p50/51 8 supra Page 12

13 [40]For the applicability of these enhanced sentencing jurisdiction 9 it is not necessary to decide whether an Accused should have had knowledge of the semi-automatic nature of the firearm (See S v Thembalethu, supra, at para 13). Given our findings on the merits, as against the Accused, he operated his firearm with such an effective ease as to have been well aware of the mechanism and the functioning of the firearm he was in possession of. 10 [41]The Accused, on this Count, is a first offender. [42]That apart, there is yet a more significant aspect to be addressed on Count 2. [43]In casu, neither the Indictment referred to the prescribed minimum sentencing applicable to this Count under the Criminal Law Amendment Act 105 of 1997, nor did the Prosecution draw this to the Accused s attention early in the trial. It is indeed desirable, in fact advisable, that such an important aspect should be specifically dealt with in the Indictment, and failing that, it must be drawn to the Accused s attention early in the trial, preferably when the trial commences, so as to afford the Accused his fair trial rights. [44]In this case the Prosecution had failed to do any of this. In the absence of such failure the Accused would have stood to be sentenced to a minimum of 15 years imprisonment, unless we found convincing reasons for a lesser sentence. 9 Supra at para Supra, at para 13 Page 13

14 [45]In the words of Davis J, with whom Cleaver J and Van der Westhuizen AJ concurred, in S v Petersen 2006 (1) SACR 23 (C) at p 27A-B, the following was said :- In the present case there is a marked absence of any attempt on behalf of the State to draw the attention of the accused to the importance of being convicted of an 'offence relating to... the possession of an automatic or semi-automatic firearm'. In terms of Part II of Schedule 2 of Act 105 of 1997 the conviction of any such offence renders an accused liable to the imposition of a minimum sentence prescribed in s 51(2)(a) of that Act. The implications of such a sentence were neither brought to the attention of the accused in the charge-sheet, nor at the outset of the trial when the accused was asked to plead nor at the time when the accused's representative made certain admissions, including that the firearm found in the possession of the accused was a semi-automatic firearm. Page 14

15 (Quoted with approval in S v Thembaletu, supra, in para 7.) [46]The following Dicta of Cameron JA in Legoa v S [2002] 4 All SA 373 (SCA) at p 381 in para 20, is equally apposite and indeed instructive :- [20] Under the common law it was therefore desirable that the charge sheet should set out the facts the State intended to prove in order to bring the accused within an enhanced sentencing jurisdiction. It was not however essential. The Constitutional Court has emphasised that under the new constitutional dispensation, the criterion for a just criminal trial is a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force. The Bill of Rights specifies that every accused has a right to a fair trial. This right, the Constitutional Court has said, is broader than the specific rights set out in the subsections of the Bill of Rights criminal trial provision. One of those specific rights is to be informed of the charge with sufficient detail to answer it. What the ability to answer a charge encompasses this case does not require us to determine. But under the constitutional dispensation it can certainly be no less desirable than under the common law that the facts the State intends to prove to increase sentencing jurisdiction under the 1997 statute should be clearly set out in the charge sheet. [47]In the circumstances, I do not believe that it would be fair to the Accused to apply the prescribed minimum sentencing spoken off above. Mr. De Klerk, for the Prosecution, has also conceded the presence of this lacunae. [48]The unlawful possession of firearms is a prevalent offence in this division. In numerous murder trials before the local courts the murders were committed with unlicensed firearms. Page 15

16 Sentence [49]In the result, the Accused is sentenced as follows : on Count 1, the murder of the Deceased, 15 years imprisonment; on Count 2, the unlawful possession of a semi-automatic firearm, 5 years imprisonment; on Count 3, the unlawful possession of two rounds of ammunition, 1 year imprisonment. These sentences on Counts 1, 2 and 3 are all to run concurrently. I. N. KOOVERJEE KOOVERJEE AJ DATE : Page 16