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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 00/2007

JPV NO: 2007/0106

In the matter between:

THE STATE

and

KHONZUYISE KWENZAKWENDUNA KHATHI Accused

J U D G M E N T

MOSHIDI, J:

INTRODUCTION

[1] Mr K K Khathi (the accused) has been convicted of murder, count 1; attempted robbery, count 2; the unlawful possession of a firearm and ammunition, counts 3 and 4, respectively. All the crimes were committed on 2 February 2007. I now have to impose appropriate sentences.

[2] In respect of count 1, the murder, the court is obliged to impose a sentence of imprisonment for life on two levels, that is, if the murder was planned or premeditated, and if the victim was a law enforcement officer performing functions as such, whether on duty or not. This is under Part 1 of Schedule 2 of section 51 of the Criminal Law Amendment Act 105 of 1997 (the Act). The deceased was undisputedly a traffic officer performing his duties of manning a traffic speed trap enforcing law under the South African Police Service Act 68 of 1995 (the South African Police Service Act), as shown below. In respect of counts 2, the attempted robbery with aggravating circumstances, the sentence for a first offender is imprisonment for a period of not less than 5 years. The court is, however, enjoined to impose sentences less than the abovementioned sentences if there are present substantial and compelling circumstances which justify the imposition of a lesser sentence than prescribed. This is provided for in section 51(3)(a) of the Act.

[3] In the often difficult search for substantial and compelling circumstances, the court will take into account the factors traditionally considered in the sentencing process, with due regard to the principles of sentencing. The principles of sentencing are deterrence, rehabilitation, prevention and retribution, all of which are usually blended with a measure of mercy, depending on the circumstances of each case. See in this regard S v Rabie 1975 (4) SA 855 (A). The traditional factors include the seriousness of the offence, the interest of society and the personal circumstances of the accused. The court is also enjoined to take into account any factor or factors closely connected with the commission of the crime, both mitigating and aggravating.

[4] In the present matter, there are indeed, conspicuous aggravating circumstances. The offences were clearly premeditated and executed in a vicious manner. The accused told Thato, the second State witness, what he intended to do, and how the crimes should be carried out. The deceased and Mthethwa, that is, his colleague, had to be accosted with a firearm and robbed of their service firearms. The accused was armed with a deadly weapon, a 9 mm Parabellum Norinco semi-automatic pistol. The accused shot at the deceased at least eight times, at close range, killing him almost instantly. The accused must have been deterred by Mthethwa from removing altogether the firearm of the deceased, although Mthethwa could have performed better under the circumstances. The deceased was shot cold-bloodedly merely for his firearm. It is commonly known that stolen firearms are in turn used to commit further crimes.

[5] The crimes were plainly planned and premeditated although carried out in what appears to be an amateurish manner as the firearms of the deceased and Mthethwa were not taken by the accused. What is particularly aggravating, is the fact that the accused killed a law enforcement officer who was carrying out his official duties. The duties, as mentioned earlier, were performed in terms of the South African Police Service Act. In S v Mokoena 1990 (1) SACR 296 (A) at p 299, Eksteen JA said: “The interests of the community must be stressed. Criminals cannot have the licence to kill policemen in the performance of their duties. Respect for the law and for the police will disappear if those murderers are not properly punished. The community will lose respect for the Courts. … The crime, in my view, was certainly a vicious one, and the fact that the deceased was a policeman killed in the execution of his duty does seem to me to be an aggravating factor which clearly has a bearing on the interests of society.” The facts in S v Hlongwane and Another 2000 (2) SACR 681 (W), are more pertinent to the present matter. In that case, the two accused, aged 27 and 23 years respectively, were convicted of the murder of a policeman in that they shot and killed the policeman and of robbery with aggravating circumstances in that they robbed the policeman of his service pistol. In imposing a sentence of life imprisonment for the murder, the court at para [17] said: “The killing of the deceased policeman in the present instance bears the following aggravating circumstances: it was planned with the intention to rob him of his service pistol; it was committed in a shopping centre; the deceased was a policeman; the deceased did not resist the attack; and he was shot at point blank range.” The court also reviewed the high incidence of murder of policemen in the Republic of South Africa and the comparable cases in other countries.

[6] S 51 of the Act does not define “law enforcement officer” referred to under Part 1 of Schedule 2 thereof. On the other hand, s 1 of the South African Police Service Act describes a member of the police as follows:

“’member’ means any member of the Service referred to in section 5(2), including –

(a) except for the purposes of any provision of this Act in respect of which the National Commissioner may otherwise prescribe, any member of the Reserve while such member is on duty in the Service;

(b) any temporary member while employed in the Service;

(c) any person appointed in terms of any other law to serve in the Service and in respect of whom the Minister has prescribed that he or she be deemed to be a member of the Service for the purposes of this Act; and

(d) any person designated under section 29 as a member.”

S 64 of the South African Police Service Act makes provision for the establishment of Municipal and Metropolitan Police Services. Furthermore, ss 64E and 64F of the last-mentioned Act, respectively, provide as follows:

“64E Functions of Municipal Police Service. The functions of a municipal police service are –

(a) traffic policing, subject to any legislation relating to road traffic;

(b) the policing of municipal by-laws and regulations which are the responsibility of the municipality in question; and

(c) the prevention of crime.

64F Powers of member of Municipal Police Service. –

(1) Subject to the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and with due regard to the fundamental rights of every person, a member of a municipal police service may exercise such powers and shall perform such duties as are by law conferred upon or assigned to a member of a municipal police service.

(2) The Minister may from time to time prescribe that any power conferred upon a member of the Service by this Act or any other law, may be exercised by a member of a municipal police service: Provided that where the power includes the power to seize an article, the member of the municipal police service shall forthwith deliver the article to a member.

(3) Every member of a municipal service is a peace officer and may exercise the powers conferred upon a peace officer by law within the area of jurisdiction of the municipality in question: Provided that a member may exercise such powers outside the area of jurisdiction if it is done –

(a) in pursuit of a person whom the member reasonably suspects of having committed an offence, and if the pursuit commenced within the area of jurisdiction of the municipality; or

(b) in terms of an agreement between the municipal council and another municipal council in terms of section 10C(7) of the Local Government Transition Act, 1993 (Act No. 209 of 1993).”

In this Act, the definition of “Metropolitan Police Service”, was deleted by s 1(a) of Act No. 83 of 1988.

From the above, it is more than evident that there could be no valid justification for differentiating between a member of the South African Police Service and a traffic officer, as in the present matter, for purposes of “law enforcement officer”, under Part 1 Schedule 2 of s 51 of the Act. Indeed, South Africa appears to be one of the few countries in the world where police and law enforcement officers are murdered by criminals with a great measure of impunity. It is a serious offence.

[7] A further aggravating feature in the present matter is the fact that the accused has two previous convictions. In October 1996 he was convicted of theft of livestock for which he was sentenced to 3 months’ imprisonment. In 2005 the accused was convicted of possession/use/dealing in and cultivating a prohibited dependence-producing drug or plant. He was sentenced to 5 years’ imprisonment of which 2 years was suspended for 5 years, the conditions whereof are unknown according to the SAPS 69. Although not relevant to the current crimes, the second previous conviction confirms the police evidence in the present trial that a huge quantity of unprocessed dagga or dagga prepared for sale, was found in the same location as Exhibit 1, the firearm, on the arrest of the accused.

[8] I consider the personal circumstances of the accused which are important in the determination of an appropriate sentence. His previous convictions have already been mentioned. From the evidence, his age is given as 27 years. He has been in custody since his arrest on 2 February 2007 in the present matter. This period is not, in the view of the court, as long as in the usual matters that come before the court. The accused did not testify in mitigation of sentence. However, his counsel informed the court that he was born on 21 December 1977, whilst his identity document, an exhibit in court, indicates that he was in fact born in 1980. He is not married but has a minor daughter of about 7 years whom he supports. Prior to his arrest, the accused was doing part-time gardening jobs and also selling loose cigarettes. He has a level of education of Sub B only. It was argued that the low level of education; the time spent in custody awaiting trial in this matter; as well as his obligation to support his daughter, all constitute substantial and compelling circumstances. The court disagrees. Close examination shows that there is in fact nothing extraordinary in the personal circumstances of the accused. On the other hand, the court cannot ignore the evidence of the widow of the deceased, Mrs Phumeza Jokazi, who testified today in aggravation of sentence. She was married to the deceased by customary union for approximately one year only at the time of the incident and they have one minor child, aged 2 years. The deceased was a traffic officer since July 2003. She is employed by the Gauteng Shared Services Centre and stayed together in Soweto with the deceased who was their main breadwinner. She testifies that her employment is insecure in that she is currently employed on contract basis and that since the death of her husband she has been responsible for the maintenance of the household. The deceased was also responsible to maintain his own extended family as a breadwinner. Mrs Jokazi was clearly emotional when she testified and appears to have been deeply affected by the death of her husband. She testifies that she attended counselling after the incident and was presently still attending counselling sessions, almost 1 year and 3 months after the incident. At the time of her evidence, Mrs Jokazi was 27 years old, and already rendered a widow by this incident. Her husband, the deceased, was also relatively young at age 32, when he was killed.

[9] As stated earlier, the murder count in the present matter is punishable with a sentence of imprisonment for life, unless the court finds existence of substantial and compelling circumstances. In S v Malgas 2001 (1) SACR 469 (SCA), at para [25], Marais JA, said: “D. The specific sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.” In Rammoko v Director of Public Prosecutions 2003 (1) SACR 2000 (SCA) at para [13], although dealing with a rape matter, Mpati JA said: “Life imprisonment is the heaviest sentence a person can be legally obliged to serve. Accordingly, where s 51(1) applies, an accused must not be subjected to the risk that substantial and compelling circumstances are, on inadequate evidence, held to be absent. At the same time the community is entitled to expect that an offender will not escape life imprisonment – which has been prescribed for a very specific reason – simply because such circumstances are, unwarrantedly, held to be present.” Considering the present matter based on the above principles, and taking into account all the circumstances, aggravating and mitigating, the court is of the view that there are clearly no substantial and compelling circumstances present. The aggravating circumstances by far outweigh the meagre mitigating factors that may be present. There is plainly very little unusual in the personal circumstances of the accused. In cases such as these, the courts are expected to protect society at large, and in particular, law enforcement officers as well as their families and dependants. The facts of this case are of such a nature that a lengthy sentence of imprisonment is unlikely to be viewed by society as an appropriate deterrent to would-be perpetrators. It will also not serve the other purposes of sentence, such as retribution, prevention and rehabilitation. In the view of the court, the sentence of life imprisonment on the murder count is the only appropriate and just sentence in the particular circumstances of this case.

[10] In the result, the following order is made:

1. On count 1, the murder, the accused is sentenced to life imprisonment.

2. On count 2, the attempted aggravating robbery, the accused is sentenced to 5 years’ imprisonment.

3. On counts 3 and 4, the unlawful possession of a firearm and unlawful possession of ammunition respectively, taken together for the purposes of sentence, the accused is sentenced to 5 years’ imprisonment.

4. Exhibit 1, the firearm, and Exhibit 2, the Samsung D500 cellphone, are declared forfeited to the State.

5. In terms of section 299A of the Criminal Procedure Act 51 of 1977, the court, in open court, informed the widow of the deceased and immediate family that they have the right to make representations when the placement of the accused on parole, on day parole or under correctional supervision is considered and to attend any relevant meetings of the Parole Board in that regard.

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D S S MOSHIDI

JUDGE OF THE HIGH COURT

WITWATERSRAND LOCAL DIVISION

COUNSEL FOR THE STATE ADV PAUL NEL

INSTRUCTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS

JOHANNESBURG

COUNSEL FOR THE ACCUSED ADV T MPANZA

INSTRUCTED BY THE LEGAL AID BOARD

JOHANNESBURG

DATE OF HEARING 9 JUNE 2008

DATE OF JUDGMENT 9 JUNE 2008

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