IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, BHISHO)
CASE NO: CC12/2010
Sentence handed down on 07 October 2010
In the matter between:
THE STATE
and
MABHUTI MURHALI DYONASE
ACCUSED
SENTENCE
SWARTBOOI AJ:
INTRODUCTION
1] Mr Dyonase you have been convicted by this Court of the crime of
murder and the Court must now impose sentence.
2] You elected not to testify and did not present any evidence in
mitigation of sentence.
Your legal representative has made
representation of your personal circumstances.
2
3] In determining an appropriate sentence, the Court takes account of the
personal circumstances of the accused, the nature of the crime and the
interests of society1.
In appropriate circumstances the Court will
exercise a measure of mercy2.
PERSONAL CIRCUMSTANCES OF THE ACCUSED
4] Your personal circumstances are the following. At the time of the
commission of the offense you were 22 (twenty two) years old.
Single without any children. At the time of your arrest you were a
grade 11 scholar at Tembelani High School at your locality. You are
from a large family of seven children who are in the custody and care
of your grandmother. Your mother lives in Cape Town where she is
employed and you do not have adequate or frequent contact with her.
Your grandmother cares for herself and the seven grandchildren with
the assistance of an old age grant, the money sent by your mother, and
a foster grant that is paid for two of the children. You grew up
without the benefit of knowing a father figure as your father died
when you were two years old. You do not have previous convictions.
1 S v Zinn 1969 (2) SA 537 (AD) and S v Rabie 1975 (4) SA 855 (AD).
2 S vRabie (supra)
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THE NATURE OF THE CRIME
5] It is a cancer in this society to see young people who resort to extreme
forms of violence as a first means of dispute resolution. In many
circumstances such violence leads to a loss of life. A person’s right to
life is a fundamental right entrenched in the Bill of Rights in the
Constitution, however despite this, youths continue to take life in a
very callous manner and with the slightest provocation.
6] Mr Jairam, who appears for the state has submitted that the murder
was perpetrated in a brutal and vicious manner where the deceased
was stabbed repeatedly, +/- 20 times. Some of the blows inflicted
were so powerful that some of the deceased’s ribs were fractured and
two others were severed. Mr Jairam has submitted that, the final
moments of the deceased must have been of pure shock and pain.
7] Although it was contended by Mr Magqabi, your legal representative
on your behalf that you stabbed the deceased in defending yourself
against an attack he initiated, it is clear from the evidence before court
that the attack was a revenge attack as the deceased had assaulted you
earlier that day.
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THE INTERESTS OF SOCIETY
8] Far too often in this society youths turn to violence as a first step in
dispute resolutions. These youths are normally young men of high
school age. Society can only demand of the courts to intercede to stop
these youths from this senseless violence. The courts are bound to
intercede in a manner that would give the community at large,
confidence in the law and deter would-be offenders. The court will
also attempt to balance societies’ need for retribution with its need to
rehabilitate young offenders.
THE PURPOSE OF SENTENCE
9] The purposes of sentence are deterrent, preventative, reformative and
retributive3.
Sentences should thus serve to deter others from
committing similar offences and crime in general.
In respect of
retribution, a court takes account of society’s moral outrage at the
nature of particular crimes and the frequency thereof. An accused will
also be provided with the opportunity for rehabilitation, wherever
possible. However, this must be balanced against the necessity of a
long term of imprisonment because of the seriousness of the crime. If
sentences for extremely serious offences are unjustifiably lenient
public confidence in the justice system may be undermined.
3 R v Swanepoel 1945 (AD) 444 at 455.
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CRIMINAL LAW AMENDMENT ACT 105 OF 1997
10]The Criminal Law Amendment Act 105 of 1997 prescribes specific
periods of imprisonment for particular crimes. Thus if a murder is
premeditated the prescribed sentence is life imprisonment.
WAS THE MURDER PLANNED OR PREMEDITATED?
11] A central question in sentencing is whether the murder was planned or
premeditated. Both counsel have referred the Court to the cases of S v
Raath4 and S V Mveleni5 and I thank them for doing so.
12] Although, premeditation has for many years been accepted as an
aggravating factor in the case of murder6, it has not been
authoritatively defined, either in the case law or statutorily. Whether
a murder was premeditated depends on the facts of each case. And
indeed there must be evidence that the murder was premeditated7.
13] Matthew A Pauley has penned an article entitled “Murder by
Premeditation”8 in which he dissects the meaning of premeditation in
the American criminal case law.
He remarks that the fact that
American jurists have disagreed so severely on the issue of
4 2009 (2) SACR 46 (C)
5 1992 (2) SACR 89 (A)
6 S v Khiba 1993 (2) SACR (A); S v Malgas 2001 (1) SACR (SCA)
7 S v Makatu 2006 (2) SACR 582 SCA
8 36 America Criminal Law Review 145 1999
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premeditation shows how difficult it is to define this concept. I will
not make an attempt to do so in this judgment.
Instead, I am
persuaded to follow the Anderson approach to premeditation from the
case of People v Anderson9.
The court in Anderson went on to
describe three types of evidence that can be used to prove
premeditation and deliberation.
“i)
Facts about how and what the defendant did prior to the actual
killing which show that the defendant was engaged in activity
directed towards, and explicable as intended to result in the killing.
“Planning activity”.
ii)
Facts about the defendant’s prior relationship and/or conduct with
the victim from which the jury could reasonably infer a “motive”
to kill the victim, … [and]
iii)
Facts about the nature of the killing from which the jury could
infer the “manner” of killing was so particular and exacting that the
defendant must have intentionally killed according to a “preconceived design” to take the victims life in a particular way.”
PLANNING ACTIVITY
14]Mr Jairam for the state submits that the murder was premeditated. He
submits that you sought revenge from the deceased, for his assault on
you and this was aggravated by the fact that you were not helped by
the police. You therefore decided to exact retribution by going to the
deceased’s home and took the law into your own hands. You decided
9 447 (p2d) 942 Cal 1968
7
to arm yourself and lay in wait for the deceased to ambush him when
he returned home. He supports this submission with Meta’s statement
who says that upon seeing the deceased you exclaimed, “Here is the
person I have been looking for, for a long time”.
15]Mr Magqabi on the other hand argues on your behalf that there is no
evidence before the court to indicate that in fact that you went to the
deceased’s home with the intention to kill him. Furthermore, that later
when you did not find him at his home you decided to ambush him on
his way home. I agree with Mr Magqabi that the evidence before
Court is that you went to the deceased’s home to retrieve your blanket.
There is no evidence that you went there with the intent to kill the
deceased. Secondly when you and your brother parted there is a
lacuna in the evidence regarding your activities thereafter until you
meet the deceased and Meta. There is no evidence that you were out
to ambush the deceased. There is therefore no evidence that you
engaged in “planning activity” to kill the deceased.
“MOTIVE”
16]There is consensus between the state and your counsel that the attack
8
on the deceased was in all probability motivated by the earlier
encounter where the deceased had assaulted you. Therefore, I agree
that there was “motive”.
PRE-CONCEIVED DESIGN
17]The post mortem report indicates the “manner” of the killing was an
explosion of violence that negates the notion that this was a carefully
planned premeditated murder.
18]Therefore, I am unable to find that the murder was premeditated and
therefore the prescribed minimum sentence of life imprisonment does
not apply.
19] Criminal Law Amendment 10 Act (‘CLA Act’) prescribes specific
periods of imprisonment for certain crimes. In respect of murder that
is not premeditated or planned a sentence of imprisonment for fifteen
years is prescribed. A Court may however depart from the prescribed
sentence if there are substantial and compelling circumstances that
justify the imposition of a lesser sentence. In assessing whether such
sentence is justified the Court will take account of any aggravating
factors and the nature and extent thereof.
10 No 105 of 1997
9
20] The Supreme Court of Appeal has stated that the prescribed periods of
imprisonment in the CLA Act are to be considered as ordinarily
appropriate for the crimes specified therein and are not to be departed
from lightly.11
ARE THERE SUBSTANTIAL AND COMPELLING CIRCUMSTANCES?
21] Mr Magqabi submitted that alcohol in conjunction with your youth
played a role in the commission of this offense. In S v M12 the court
was required to consider the role that the influence of alcohol had
played on the accused in its determination of an appropriate sentence.
Nienaber JA stated:
“Liquor can arouse senses and inhibit sensibilities. It is for the State to
discount it as a mitigating factor, to show that it did not materially affect
the appellant’s behaviour.”
He went on to state:
“The case is on the borderline. But in the end one cannot ignore the
possibility that the liquor the appellant had consumed during the day,
combined with his immaturity, impaired his faculties and loosened his grip
on events. He undoubtedly had the volition to act. He knew what he was
about. But he was less in command of himself than he would have been if
he had not been drinking. And in the final analysis one cannot confidently
say that it did not contribute to the unfolding of the events ending in the
death of the deceased.”
11 S v Malgas 2001 (2) SA 1222 (SCA)
12 1994 (2) SACR (A)
10
22]You had consumed alcohol on that night and I have no doubt that the
alcohol affected your immature mind and diminished your moral
blameworthiness.
23]Mr Jairam for the state conceded that it was difficult in the
circumstances to argue that there were no substantial and compelling
circumstances in light of the fact that you were 22 years old when you
committed the crime and you had no previous convictions.
He
indicated that normally murderers graduated to that offense and
normally had a list of previous convictions. The fact that you have
none is significant.
24]Mr Jairam has submitted, and correctly so, that the brutality of the
attack is an aggravating factor. Such brutal behaviour calls for a
severe sentence and a long term of imprisonment is appropriate.
However, there are mitigating factors. These are:
a)
Your personal circumstances. You are young, 24 years old.
Your background cannot be described as ideal and you were a
scholar when you were arrested.
b)
Until this murder you had not been convicted of any other
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criminal activity.
c)
The combination of alcohol and your youth played a role in
diminishing your moral blameworthiness.
d)
When you attempted to report the prior incident to the police
you were chased away at the police station instead of assisted.
25]In my view, these are substantial and compelling circumstances that
justify a lesser sentence than the minimum prescribed sentence. The
sentence imposed satisfies the needs of society and the accused. The
Court also exercises a measure of mercy.
SENTENCE
In the result, after weighing all the relevant factors, I consider the following
sentence appropriate.
“You are hereby sentenced to imprisonment for 10 years”.
SJ SWARTBOOI
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the State
:
Mr Jairam
For the accused
:
Mr Magqabi
Date: 07 October 2010