SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

Registrar Ref. No.  247/2007
Date:28/05/2010
In the matter between:
THE STATE
versus
ALPHEUS PHUTHI MATLALA.........................................................................Accused

MEYER, J

[1]	On 31 March 2010, the accused was convicted of the murder of the late Mr. Daniel Matome Bopape, who died on 2 May 2007.  Mr. C. Makhubele, a Probation Officer in the employ of the Gauteng Provincial Government Department of Social Development, prepared a pre-sentence report in respect of the accused (exhibit ‘K’), and he also testified.  The accused testified in mitigation of sentence.  A representative of his employer, Mr. D. Burton, also testified on his behalf.  Adv. Dreyer, on behalf of the accused, and Adv. Stellenberg, on behalf of the state, addressed me on the issue of sentence.     

[2]	The accused has been convicted of an offence referred to in Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (‘the Act’).  He is a first offender.  The prescribed sentence, in terms of ss 51(2)(a)(i) of the Act, is one of imprisonment for a period not less than fifteen years, unless substantial and compelling circumstances within the meaning of ss 51(3) exist, which justify the imposition of a lesser sentence.  In considering whether or not substantial and compelling circumstances exist which would justify the imposition of a lesser sentence than the one prescribed, the traditional objectives of punishment – prevention, retribution, deterrence, and rehabilitation - apply, and I am enjoined to weigh the personal circumstances of the accused against the crime committed by him and the interests of society.

[3]	The accused committed a serious crime.  Our country at present suffers an unacceptable and distressing incidence of violence and the community demands that courts deal firmly and severely with such offenders and for appropriately severe punishments to be imposed for a crime such as the one of murder which has been committed by the accused.

[4]	The personal history and circumstances of the accused are set out in the pre-sentence report (exhibit ‘K’), and are not in dispute.  I mention only a few salient aspects of his personal history and circumstances.  The accused was born on 29 June 1971 and is presently 38 years of age.  He was raised by his mother, because his father passed away when he was only two years old.  He had a good upbringing.  He matriculated at Mashobela High School in 1994.  He was not able to pursue tertiary education due to financial constraints.  The accused and his wife, Rosinah, married in 1997.  They have two children, M, who is 16 years of age and a grade 12 pupil, and K, who is two years of age.  The accused is a family man and actively involved in the upbringing of his children.  He is the main breadwinner.  His wife, Rosinah, is also employed and earns a monthly salary of R3, 300.00.  The accused also has two children from a previous relationship, namely D, who is 19 years old, and E, who is 16 years old, both of whom are attending school.  D and E are in the custody of their maternal family, but the accused contributes financially to their maintenance.

[5]	The accused has been employed by Guard Track (Pty) Ltd since 15 July 1999.  Mr. D. Burton, who owns the company, gave the accused an excellent testimonial when he testified.  The accused worked his way up from messenger into a key position in the company.  The accused is one of only three members of staff.  He bears technical and various other responsibilities.  He works independently and is considered diligent, honest, polite, and trustworthy.  Mr. Burton testified that it will be a great loss to the company if the accused is incarcerated and he will be difficult to replace.  It is stated in the pre-sentence report (exhibit ‘K’) that the accused earns a basic monthly salary of R5, 500.00 and that he makes up to R8, 000.00 through overtime.

[6]	I conclude, and this was in my view correctly conceded by Adv. Stellenberg, that the accused has been exemplary in his personal life and in his employment.  He is a first offender and he stayed on the correct side of the law until he was 36 years of age.  The finding of dolus eventualis should also be acknowledged as mitigating in this instance.  It is accepted that there was some unresolved issue between the accused and the deceased.  The accused’s main aim was to take the deceased to the police station.   

[7]	The accused essentially testified in order to take issue with the statement of the Probation Officer, Mr. Makhubele, that he does not show any remorse, which is a negative prognosis for rehabilitation, and in order to proclaim his innocence.  I am satisfied that the accused has not shown any sincere remorse.  I nevertheless accept that rehabilitation is a process and, given the accused’s age, personal history, and employment achievements, that rehabilitation for him is a real prospect.

[8]	The personal circumstances of the accused and the other mitigating factors that I have mentioned cumulatively amount to substantial and compelling circumstances within the meaning of the Act when balanced against the seriousness of the crime committed and the legitimate interests of society.  

[9]	A lengthy custodial sentence, however, is warranted.  The seriousness of the crime committed by the accused would in my view have called for a term of imprisonment in excess of the prescribed minimum period of fifteen years had it not been for the personal circumstances of the accused and the other mitigating factors in his favour.         
                       
[10]	In the result, the accused is sentenced to imprisonment for a period of twelve years pursuant to his conviction of murder.		          			    	

						
P.A.  MEYER
JUDGE OF THE HIGH COURT
28 May 2010