---

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no. CC 68/2018

Date heard: 1/11/18

Date delivered: 2/11/18

Not reportable

In the matter between:

THE STATE

and

SIPHAMANDLA PETSE                                                                                      Accused 1

BULELANI BAFO ZOZI                                                                                       Accused 2

 

JUDGMENT

 

Plasket J:

[1] I convicted the accused of five criminal offences each, namely housebreaking with intent to rob (count 1); robbery with aggravating circumstances (count 2); murder (count 3); the unlawful possession of a firearm (count 4); and the unlawful possession of ammunition (count 5) It is now my task to sentence them for these crimes.

[2] In terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997, read with Parts I and II of Schedule 2, prescribed sentences apply in respect of two of the counts. They are 15 years imprisonment in respect of the convictions for robbery with aggravating circumstances and life imprisonment in respect of the murder convictions because the murder was committed during the course of a robbery and was also committed by the accused in the execution or furtherance of a common purpose.

[3] In S v Malgas 2001 (1) SACR 469 (SCA) at paragraph 8 Marais JA made it clear that the sentences prescribed by the Act are to be considered by trial courts to be ordinarily appropriate, unless substantial and compelling circumstances justify the imposition of a less severe sentence, and that they should not be departed from lightly or for flimsy reasons. Apart from that, however, the factors traditionally taken into account when sentencing offenders continue to have application. In other words, in determining whether substantial and compelling circumstances are present to justify a deviation from the prescribed sentence, a court must consider the triad of factors, highlighted in S v Zinn 1969 (2) SA 537 (A) at 540G-H nearly 50 years ago. They are ‘the crime, the offender and the interests of society’.

[4] In convicting the accused, I found that they had, on 25 November 2017, gone to the farm of Mr Riaan Scheepers (the deceased), had broken into his house with the intention of robbing him, had robbed him by assaulting him in the manner I shall describe and by stealing two cellphones, a cellphone charger, a motor vehicle, a firearm, ammunition and an airgun, and had thereafter been in unlawful possession of the firearm and ammunition that they had stolen.

[5] When the accused entered the house, the deceased was elsewhere. When they saw him returning, they decided to assault him and elicit from him the whereabouts of the keys to the safes in the house. As he entered the house, accused 1 attacked him and wrestled with him. The deceased managed to draw his firearm and discharged a shot. He was overpowered and disarmed, whereupon he was assaulted on the head with a hammer and at least one other blunt object. He was tied up while in an unconscious state and bleeding profusely from his numerous head wounds.  After remaining in the house for about an hour as they tried vainly to open the safes, the accused eventually made their escape in the deceased’s vehicle. They left the deceased and an employee of his, whom they had captured and tied up, in the house.

[6] Mr Johannes Scheepers, the deceased’s brother testified that he took a number of photographs of his brother soon after his admission to hospital and while his brother, in a state of unconsciousness, was receiving treatment for his injuries. The photographs were handed in and, as I said in my judgment on conviction, they show ‘in shocking and graphic detail the severity of the assault’ to which the deceased had been subjected. Mr Scheepers testified that he counted 16 incised wounds on his brother’s head and observed that, in addition, his top lip was injured, his eyes were swollen and his front teeth were broken.

[7] Dr Celeste Herbst, the forensic pathologist who conducted the post-mortem examination, apart from noting a number of these wounds, also found four U-shaped or half-moon shaped compressed wounds on the deceased’s skull which corresponded with four depressed fractures with fracture lines radiating from them. She was of the view that these wounds were inflicted with a hammer. 

[8] The deceased was assaulted so severely that on 19 December 2017, he died as a result of complications arising from the blunt force trauma inflicted on him.

[9] In my judgment on conviction, I found that ‘the attack on the deceased was extremely violent and a great deal of force was used’. I found too that ‘both accused participated actively in a vicious, sustained and severe assault on the deceased with a hammer and one other object at least’.

[10] The offences committed by the accused are all extremely serious offences in their own right. Housebreaking with intent to rob, robbery with aggravating circumstances, murder and offences relating to arms and ammunition are all offences which are rife not only in the jurisdiction of this court but throughout the country. The prevalence of the second and third of these offences is a major reason for the prescribed sentences created by the Criminal Law Amendment Act being on the statute book. In S v Malgas at paragraph 8 Marais JA said that in providing for prescribed sentences in respect of certain offences, ‘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’.

[11] Certain other factors aggravate the already serious nature of the offences. The first is that the housebreaking and robbery were planned the night before. On the day in question, the accused set off having prepared for what they were about to do. One of the accused was armed with the hammer – a dangerous weapon – with which the deceased was later assaulted. Another of the accused wore a balaclava to ensure that he was not identified. (There was no evidence one way or the other whether the other accused also wore a balaclava.)

[12] The house was kept under observation until the time was ripe for the housebreaking to be committed. When the deceased returned, a plan was made to ambush him and assault him with a view to forcing him to reveal the whereabouts of the keys to the safes in the house. He was thus assaulted in the sanctity of his own home. The assault on the deceased was, as I have already indicated, brutal and sustained. It was carried out with a weapon brought for the purpose.

[13] The deceased was an elderly man of 62 years. He had, according to an affidavit deposed to by his daughter, Ms Bianca Scheepers, been injured a number of years ago in a motor accident (in which his wife had died) and as a result walked with a limp and was not able to run. His chances of defending himself against two young men were therefore slim.

[14] The conviction for the unlawful possession of the deceased’s firearm has one aggravating factor of its own. When the deceased had been disarmed, accused 2 took the firearm and used it to compel the deceased’s employee, Mr Lifi Breakfast, to return to the house with him, where he was tied up along with the deceased. Mr Breakfast testified, and I accept his evidence in this respect and reject the contrary evidence of accused 2, that accused 2 pointed the firearm at him to force him to stop and then placed it against the back of his head to compel him to go to the house.

[15] I turn now to the second leg of the Zinn triad, the personal circumstances of the accused.

[16] Accused 1 is 24 years old, so he was probably 23 years old at the time of the commission of the offences. He is single and has one child, a boy of two years of age who lives with his mother. He left school after having completed grade 11. He was not, at the time of his arrest, in formal employment but performed odd jobs as and when the opportunity arose. He also coached the under-13 soccer team at a school in Alexandria. He is a first offender.

[17] Accused 2 was 20 years old at the time of the commission of the offences. He was employed as a general labourer at a school at the time of his arrest. He earned R1 500 per fortnight. He has no children. He left school in grade 9. He is not a first offender: in 2013, he was convicted of rape and sentenced to three years imprisonment suspended entirely for five years.

[18] Both accused pleaded guilty to counts 1, 2, 4 and 5, although accused 1 attempted unsuccessfully to back-track, to an extent, from his plea in respect of count 1. Both pleaded not guilty to the murder of the deceased but guilty to assault with intent to do grievous bodily harm. In doing so, both sought to minimise their roles and to blame each other for the fatal assault on the deceased.

[19] It appears to me that the accused were eventually prepared to plead guilty to counts 1, 2, 4 and 5 when they realised they had no chance of escape. Principally because the deceased’s cellphone was found at accused 1’s house and because DNA analysis had revealed that the blood that was found on their respective trousers was the blood of the deceased, they were placed firmly inside the deceased’s house on the day in question. As they were the only living people who knew what had transpired in the house from when the deceased entered until the assault on him ended, they must have felt they could be able to avoid the consequences of having killed him. The result was a plea of guilty to assault with intent to do grievous bodily harm and – to put it bluntly – a pack of obvious and often pathetic lies from both of them.

[20] In these circumstances I cannot see how their pleas of guilty can avail them as mitigation. As Ponnan JA stated in S v Matyityi 2011 (1) SACR 40 (SCA) at paragraph 13, ‘a plea of guilty in the face of an open and shut case against an accused person is a neutral factor’.

[21] I am of the view too that neither of the accused has displayed any true remorse for what they have done. I say that because although accused 1 expressed some contrition at the end of his evidence in chief, their conduct in respect of the murder count and the terms of their pleas of guilty to assault with intent to do grievous bodily harm indicate a refusal to accept responsibility for their actions and a dismal failure to take the court into their confidence. In Matyityi at paragraph 14 Ponnan JA held:

‘There is, moreover, a chasm between regret and remorse. Many accuse persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. 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; and whether he or she does indeed have a true appreciation of  the consequences of those actions.’

[22] While the presence of remorse may be a mitigating factor, a lack of remorse is not an aggravating factor. See S v Hewitt [2016] ZASCA 100 at paragraph 16. The absence of remorse may, however, be an indication that the accused have failed to take responsibility for their actions and of an absence of empathy for their victim. See S v Otto [2017] ZASCA 114 at paragraph 23. These factors do not bode well for the accuseds’ prospects of rehabilitation.

[23] It was argued by Mr Mqeke for accused 1 and Mr Solani for accused 2 that the ages of the accused constitute mitigation. Mr Obermeyer, who appeared for the State, argued that their ages, taken in isolation, are at best neutral factors. He relied on Matytityi’s case as authority for this submission. At paragraph 14, Ponnan JA held:

‘It is trite that a teenager is prima facie to be regarded as immature and that the youthfulness of an offender will invariably be a mitigating factor, unless it appears that the viciousness of his or her deeds rules out immaturity. Although the exact extent of the mitigation will depend on all of the circumstances of the case, in general a court will not punish an immature young person as severely as it would an adult. It is well established that, the younger the offender, the clearer the evidence needs to be about his or her background, education, level of intelligence and mental capacity, in order to enable a court to determine the level of maturity and therefore the moral blameworthiness. The question, in the final analysis, is whether the offender’s immaturity, lack of experience, indiscretion, and susceptibility to being influenced by others reduces his blameworthiness. Thus, while someone under the age of 18 years is to be regarded as naturally immature, the same does not hold true for an adult. In my view, a person of 20 years or more must show by acceptable evidence that he was immature to such an extent that his immaturity can operate as a mitigating factor.’

[24] In this case, no evidence relating to the level of maturity of the accused was led and so I agree with Mr Obermeyer that in the circumstances, their ages are neutral factors.

[25] I turn now to the third leg of the Zinn triad – the interests of society.

[26] The affidavit deposed to by Ms Scheepers tells a sad tale of the impact of the death of the deceased on his family, his employees and his community. She and her siblings have struggled to come to terms with the loss of their father, a man, she said, who after the death of his wife in 2005, had ‘become a mother and father to my siblings and I’. She said that he ‘was a pillar in our lives, who was always there for us’ and his death has made them feel like they have lost their home.

[27] The death of the deceased had an adverse effect on her and her siblings by creating in them anxiety and fear. She spoke too of experiencing nightmares in the aftermath of his death. Both she and her sister sought professional counselling to help them to cope with what had happened. She stated that neighbouring farmers had told her of their anxiety and fear for their own safety.

[28] Ms Scheepers said that her father was involved in his community in at least three ways. He had been involved in the running of the old age home in Alexandria since 2012 and served as the chairperson of its board. He visited the home more than once a week. He also was a long-standing member of his church council. He was the treasurer of the local farmers association and had been involved in its affairs for a number of years. His death, she said, ‘has left a void in these community areas’. On a more personal level, he supported his mother-in-law financially and emotionally.

[29] At the time of his death, the deceased employed four people permanently on his farm, as well as casual labourers (including the accused on one occasion each) as and when needed. As a result of his death, the farm was leased to one person and the farm house to another. The four employees lost their employment. Ms Scheepers and her siblings have managed to find one of them a job, at the old age home, but the other three employees, including Mr Breakfast, are now unemployed.

[30] It is clear from the evidence of Ms Scheepers that the death of the deceased has had a real and devastating impact on his family, his employees and his community. In these circumstances, it is my view, that the legitimate interests of society demand stern sentences for those who violently take advantage of the vulnerable, in the way in which the accused did.

[31] I am of the view that when the nature and seriousness of the offences committed by the accused, as well as the devastating consequences for his family, employees and community, are weighed against the personal circumstances of the accused, it cannot be said that substantial and compelling circumstances exist that justify a departure from the sentences prescribed in respect of counts 2 and 3. Given the barbarity of the murder of the deceased in particular, and the planned and brazen robbery that they committed, the prescribed sentences are, I believe, proportional and appropriate.

[32] One of the effects of my finding that the prescribed sentence of life imprisonment in respect of the murder convictions is to be imposed on the accused is that all of the other sentences I impose will run concurrently with it.

[33] Despite the fact that accused 2 has a previous conviction for a crime of violence, I intend to treat him in the same way as accused 1. I do so because I see no reason to differentiate insofar as their moral blameworthiness is concerned. In their participation in the various crimes they committed they acted as equal partners.

[34] I sentence each of the accused as follows:

(a) count 1 – housebreaking with intent to rob – five years imprisonment;

(b) count 2 – robbery with aggravating circumstances – 15 years imprisonment;

(c) count 3 – murder – life imprisonment;

(d) count 4 – unlawful possession of a firearm – five years imprisonment;

(e) count 5 – unlawful possession of ammunition – two years imprisonment.

 

 

_______________________

C Plasket

Judge of the High Court

 

APPEARANCES

For the State: H Obermeyer

Director of Public Prosecutions, Grahamstown

For accused 1: V Mqeke

Mqeke Attorneys, Grahamstown

For accused 2: T Solani

Grahamstown Justice Centre

---