S v Methula - Sentence (CC49/2021) [2024] ZAECELLC 24 (2 May 2024) (2024)

IN THE HIGH COURT OFSOUTH AFRICA

(EASTERN CAPEDIVISION, EAST LONDON CIRCUIT COURT)

CASE NO. CC 49/2021

In the matter between:

THE STATE

and

NDUMISOSICELO METHULA Accused

SENTENCE

LAING J

[1]The question of what sentence is appropriate aftera finding of guilt attracts no easy answer. Much has been writtenabout the subject.If anything, then it would be useful merely tocommence the final phase of the trial, where the accused has beenfound guilty ofthe offence with which he has been charged, bystating the obvious: an appropriate sentence depends substantially onthe factsof each case. And each case is unique.

[2]Thetriad of factors enunciated in Sv Zinn remainsas relevant as ever for purposes of sentencing.[1]The court must consider the crime, the offender, and the interests ofsociety. Overtime, the triad has been refined and expanded, but the essentialprinciples remain the same.

[3]Terblanche summarises the basic principles of sentencingas follows:

‘(1)The sentencing court has to impose an appropriate sentence, based onall the circ*mstancesof the case. The sentence should not be toolight or too severe.

(2)An appropriate sentence should reflect the severity of the crime,while at the sametime giving full consideration to all themitigating and aggravating factors surrounding the person of theoffender; in other words,the sentence should reflect theblameworthiness of the offender, or be in proportion to whatis deserved by the offender. These two factor, the crime and theoffender, are thefirst two elements of the triad of Zinn.

(3)An appropriate sentence should also have regard to or serve theinterests of society,the third element of the Zinn triad. Theinterests of society can refer to the protection society needs, orthe order or peace it may need, or the deterrenceof would-becriminals, but it does not mean that public opinion be satisfied.

(4)In the interests of society the purposes of sentencing aredeterrence, preventionand rehabilitation, and also retribution.

(5)Deterrence has been said to be the most important of the purposes ofpunishment, althoughthis has been shown to be an oversimplification.Deterrence has two components, namely deterring the offender fromre-offendingand deterring other would-be offenders.

(6)Rehabilitation should be pursued as a purpose of punishment only ifthe sentence actuallyhas the potential to achieve it. In the case ofvery serious crime, where long terms of imprisonment are appropriate,it is notan important consideration.

(7)Prevention as a separate purpose of punishment is rarely discussedany longer.

(8)Retribution, as an expression of society’s outrage at thecrime, has been heldnot to be as important as it was in the past butmay nevertheless be of great importance, depending on the facts ofthe case. Thus,if the crime is viewed by society with abhorrence,the sentence should also reflect this abhorrence. Retribution canalso be relatedto the requirement that the punishment should fit thecrime, or that there should be a proportional relationship betweenthe punishmentand the crime.

(9) Mercy is contained within a balanced and humane approach toconsideration of the appropriatepunishment. This appropriatepunishment is not reduced in order to provide for mercy. There is noroom for a vindictive and vengefulattitude from the sentencingofficer.’[2]

[4]The above summary ofbasic principles is drawn from the case law that has developed overtime. It has been relied upon in recentcases; see, for example, Sv Tsotetsi.[3]

[5]The nature of the offence in the present matter is suchas to fallwithin the ambit of the minimum sentencing provisions contained insection 51(2) of the Criminal Law Amendment Act 51of 1997 (‘CLAA’).The court is required to sentence the accused, as a first offender,to imprisonment for not lessthan 15 years unless substantial andcompelling circ*mstances exist to justify the imposition of a lessersentence.

[6]Bothcounsel referred to the decision in Sv Malgas,[4]whichis recognized as a seminal case on the interpretation of the aboveminimum sentencing provisions. In that regard, Marais JAheld asfollows:

‘[t]hat[the legislature] has refrained from giving such guidance as was donein Minnesota from whence the concept of “substantialandcompelling circ*mstances” was derived is significant. Itsignals that it has deliberately and advisedly left it to thecourtsto decide in the final analysis whether the circ*mstances of anyparticular case call for a departure from the prescribedsentence. Indoing so, they are required to regard the prescribed sentences asbeing generallyappropriate forcrimes of the kind specified and enjoined not to depart from themunless they are satisfied that there is weighty justificationfordoing so.’[5]

[7]Variouscommentators have referred to four key principle that the SupremeCourt of Appeal identified in Malgas:(a) the prescribed sentences are the starting point; (b) if adeparture therefrom is called for then the court should not hesitateto depart; (c) for purposes of determining whether a departure iscalled for, a court must weigh up all considerations that aretraditionally relevant to sentencing; and (d) there must be adeparture when the prescribed sentence would be unjust.[6]

[8]In Sv Vilakazi,[7]to which counsel for the state referred, the Supreme Court of Appealconfirmed the principles laid down in Malgas.However, the court also emphasised the principle of proportionality;a court is required to consider all the circ*mstances ofa case.[8]More will be said about this later.

[9]The defence, in mitigation, led the evidence ofthe accused himself. He testified that he is 45 years old and holds adiploma ininformation communication technology and a certificate infinancial management. He has been employed at various times in thebankingand furniture retail sectors. He was retrenched in 2019. Theaccused is also the director of a private company, currently notgeneratingany income, and has an interest in a Gqeberha basedbusiness, owned by a friend.

[10]The accused went on to confirm that his two minorchildren, A and M, who previously testified in the matter, are in thecare ofa maternal uncle and his wife, in Cape Town. He has hadinfrequent contact with them since the commencement of theseproceedings.He also has an 18-year-old daughter, who stays with amaternal aunt and her grandmother in Gqeberha; she is presentlyseeking employment.The accused also explained that he is in closecontact with the older daughter of the deceased, Ms Mbawu, whotestified previously.His parents live in Gqeberha and receive apension, to which he sometimes contributes.

[11]Continuing his evidence in mitigation, the accusedemphasised that he had contact with the father of the deceased, MrMagengelele,who forgave him for his actions and indicated that heheld nothing against him. The accused, concluding his testimony,apologizedto the family, and asked for their forgiveness.

[12]The defence led no further witnesses.

[13]The state, in turn, submitted a letter on behalfof the deceased’s family, in terms of which they stated that itwas difficultto forgive the accused. This was because the death ofthe deceased had divided the family. It had also led to resentment,sadness,and a sense of helplessness, resulting in the deterioratinghealth of the deceased’s aunt and her father. Such feelings hadbeen intensified by a perception that the accused was not trulyremorseful about what he did. His children missed their mother,theywere not performing well scholastically. Finally, the incident hadresulted in additional expenses for the family, includingthe need topay for the security of the house at Ncera Village 3.

[14]The state led no witnesses in aggravation.

[15]At this point, it is necessary to decide whethersubstantial and compelling circ*mstances exist to justify theimposition of a lessersentence. To his advantage, the accused is afirst offender. He has a tertiary education and entrepreneurialskills that couldcontribute to the well-being of society. He hasdescribed the destructive nature of his relationship with thedeceased and howthis affected his actions. He has acceptedresponsibility for the consequences thereof and has expressed regretand considerableremorse about the incident. There are, however, nodependents who would be severely prejudiced by his incarceration.There wasno evidence of any underlying health concerns. Whetherviewed individually or collectively, the above factors do notconstitutesubstantial and compelling circ*mstances.

[16]Turningto the crime itself, counsel for the state emphasised the seriousnessof the incident. In Sv Ximiya,[9]Makaula J had this to say:

‘[The]death of a human being through killing has devastating and direconsequences for the family of the deceased person. It resultsinfinancial, emotional, traumatic and psychological problems on thoseclose and around the deceased. Its adverse effects can neverbeadequately described and the pain it causes cannot be measured in anyway. The pain and helplessness that one feels cannot beverbalized.’[10]

[17]Murder is one of the oldest and strictest oftaboos. The preservation and integrity of civilization itself dependon the prohibitionof such an act. It is in most, if not all,communities a cardinal offence. Within a South African context,murder removes, forever,a person’s fundamental right to life.There are few crimes as serious.

[18]In the present matter, the deceased died inhorrible circ*mstances. She was dragged from the kitchen by thefather of her children,armed with a knife. She was stabbed not oncebut three times in the chest, with sufficient force to fracture herribs and collapseher lung. She died, eventually, from a stab woundto the heart. The forensic pathologist called by the state, DrNtloko, testifiedthat the deceased would have experiencedconsiderable pain. These are, most clearly, aggravating factors inrelation to the determinationof sentence.

[19]In Sv Dyantyi,[11]Petse ADJP (as he was then), remarked as follows:

‘…whenit comes to punishment, courts must, after taking due cognisance ofall relevant factors, impose sentences that reflect therevulsion ofsociety at the commission of such crimes. This is, however, not tosay that the courts should abdicate their sentencingdiscretion andallow themselves to be swayed by public opinion; it is, rather, moreto say public interest dictates that the concernsof society andsociety’s disapproval of certain crimes should receive somerecognition in the sentences that courts impose,especially thoseoffences that strike at the very heart of the values and ethos of ourConstitution.’[12]

[20]InVilakazi,the Supreme Court of Appeal pointed out that, in cases of seriouscrime, the personal circ*mstances of the offender must, bythemselves, necessarily recede into the background.[13]The state, in the present matter, has cited the decision in Sv Rohde toargue that the crime of which the accused has been convicted is theultimate and most extreme form of gender-based violence.[14]The nature of the crime and the interests of society, contends thestate, call for the imposition of a life sentence, alternativelytwenty years’ imprisonment.

[21]Thedefence, in contrast, has referred to Sv Scott-Crossley topoint out that the accused must not be sacrificed on the altar ofdeterrence.[15] Thecirc*mstances of the case, including the blameworthiness of theoffender, must be considered.

[22]InVilakazi,Nugent JA underscored the relevance of the principle ofproportionality.[16] Thepunishment must be proportionate to what the offender deserves, noless and no more; humans ought to be treated as ends inthemselves,never merely as a means to an end. Whereas the mitigating factorsmentioned by the defence failed to serve as substantialandcompelling circ*mstances in relation to the minimum sentencingprovisions, they cannot be ignored when applying the principleofproportionality.

[23]In the present matter, two such factors stand out.These will be discussed further, below.

[24]The first factor is what was described in earlierproceedings as the toxic nature of the relationship between theaccused and thedeceased. Although their relationship may have begunpositively, with mutual displays of love and affection towards eachother,it deteriorated over time to a violent mix of suspicion andjealousy, resentment and anger, ongoing tensions, and, ultimately, akilling. From the evidence led, it cannot be said that the deceasedwas entirely innocent in the history of the relationship. Attimes,her strong personality and temper may well have exacerbated thefriction between the couple.

[25]The second factor is the extent to which theaccused has gone to express his contrition. Although the statequestioned the sincerityof his remorse, the court cannot overlookthe evidence presented. He wrote to the deceased’s family andto his friends, acknowledgingthe hurt and devastation that he hadwrought; he met with the deceased’s father, seekingreconciliation; he faced the deceased’sfamily in court,apologizing for his actions and asking for forgiveness. The state wascorrect in testing the accused’s sincerity.The question mustbe asked, however, about what more he could have done. There islittle if anything to indicate that his contritionis not real.

[26]InDirectorof Public Prosecutions, Gauteng v Pistorius,[17]the Supreme Court of Appeal could not find that the accused wasgenuinely remorseful because he had not taken the court fully intohis confidence. That cannot be said of the accused in the presentmatter. Under cross-examination, the accused admitted that helosthis temper. It was the way they argued, he said, that had a bearingon what followed; their aggression was the catalyst forhis actions.

[27]The court, in the end, must weigh and balance theset of aggravating and mitigating factors that have become definedduring theseproceedings. It must apply the principles helpfullysummarised by Terblanche and arrive at an outcome that rests,ultimately, onan equilibrium achieved between the competing forcesgenerated by the nature of the crime, the personal circ*mstances ofthe offender,and the interests of society.

[28]Consequently, the court makes the following order:

The accused, having beenfound guilty of the offence of murder, is sentenced to imprisonmentfor a period of 18 years.

JGA LAING

JUDGE OF THE HIGHCOURT

[1]1969(2) SA 537 (A).

[2]SSTerblanche, AGuide to Sentencing in South Africa(LexisNexis,3ed 2016), at 151-2.

[3]2019 (2) SACR 594 (WCC).

[4]2001(1) SACR 469 (SCA).

[5]Atparagraph [18].

[6]Terblanche,opcit,at 76-8.

[7]2009(1) SACR 552 (SCA).

[8]Atparagraph [3].

[9](CC91/14)[2015] ZAECBHC 9 (19 February 2015).

[10]Atparagraph [2].

[11]2011(1) SACR 540 (ECG).

[12]Atparagraph [21].

[13]Vilakazi,n 7 supra,at paragraph [58].

[16]Vilakazi,n 7 supra,at paragraph [18].