IN THE SUPREME COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO:				SS88/1992
DATE;					17 FEBRUARY 1993
In the matter of:
THE STATE
VERSUS
1.	MELVIN SWENI
2.	JOHANNES WILLIAMS
3.	SINDILE SWENI
SENTENCE

There are several helpful guidelines which have been laid down by the Appeal Court as to what is to be taken into account when sentences are to be imposed. In the first place the Court must consider the nature of the crimes which have been committed. In the second place the Court 1 5 must have regard to the interests and concerns of society, that is of the community. In the third place the Court must take into account each convicted person's own individual, personal circumstances. In doing this, the Court must be careful not to place too heavy an emphasis on any one of these three considerations. Equal weight must be given to 20 each of them. No one of them is to over-emphasised or under-emphasised. Coming to a view of the matter in the light of all this, the Court is enjoined to have regard to the element of mercy.
Insofar as the nature of the crimes which you have committed are concerned and as far as the interests of the community are concerned,       

deliberately set about the blood-thirsty task of silencing him by using him as some kind of human dart board.
It was an appalling murder that you three committed and in the 20 end, to what purpose. In order to rob him of his possessions which turned out to be of little use to any of you, some goods hidden along the road-side, a BMW motor car which you effectively put out of action, a musical instrument which accused number 1 took and which I doubt he could play, a diamond ring which accused number 2 took and still had  when arrested. The firearm which accused number 3 robbed the deceased of after luring him into a homosexual bout. I have described your conduct as cruel, vicious, brutal, shocking and savage. To this description I must add the words cowardly and inhuman. 

Knysna is, or should be, a quiet and happy town. I do not know how prevalent crimes of violence are in that community but I certainly know that in recent times two notorious murders were committed there; that of an innocent little girl that occasioned great publicity, and that of an unfortunate visiting hitch-hiker whose murder also gained great publicity. Something must be done to show the public that its security 20 is well cared for by the Court and this case is an excellent opportunity to assure the public on that concern.
I turn then to deal separately with the personal circumstances of each of you and the sentence to be imposed on each of you.

3.	
I turn to deal with accused number 2. You too have a history of crimes behind you. There are, I think, some seven previous convictions for theft. It appears from your record of previous convictions that corporal punishment had no effect on you. In all you have spent some three years in jail for theft. I do not know of anything that can be said 20 in mitigating your sentences because you elected to say nothing and give no evidence.

It seems to me that whether your life is terminated by hanging or effectively by having to spend the rest of your days in jail, amounts to very much the same thing, so long as you are permanently removed from society.  Life imprisonment for you at the age of 24 must be an awful prospect. To know that you may live another 10, 20 or 30 or more years each and every morning you wake up to the same thought, that you will never ever again breathe the free air of the outside world and that you are doomed to die behind bars. That, I feel, is an appropriate sentence for you.
I do not need to distinguish your sentence in any substantial way upon the three remaining counts from which the Court has imposed on accused number 2 because you and number one both have records as thieves and deserve the same punishment, except of course that accused number has a previous conviction relating to a firearm and ammunition. What I want to stress insofar as you are concerned is this - should for some reason or other your sentence of life imprisonment is at some future date changed so that you have a prospect of being released from imprisonment before you die, the additional sentence on the count of robbery with aggravating circumstances will then come into operation.

The Court thus imposes the following sentences:
1.	

This   means   that   you   are   sentenced   to   life imprisonment plus 10 years.

In January 1990 you were sentenced to seven years'  imprisonment for culpable homicide, to which three months later in April 1990 were added a previously suspended sentence of three years, in respect of which you had already been effectively jailed for three years. The fact is that in April 1990 you had the prospect of spending some nine and three-quarter years in jail. You participated in the crimes which  you are now charged with and for which I am now about to sentence you in July 1 991, at a time when you should have been in jail in terms of sentences properly passed upon you. In fact, you had at most served 15 months of almost 10 years' imprisonment when you went back to work with a knife.
I do not know what prompted your extraordinarily release from jail but I record with sadness that had that not happened the unfortunate deceased, who did you no harm, might still have been alive today. It may be that you were released, with what I can only call unseemly haste, because prisons are over-crowded or that you were assessed and very incorrectly deemed suitable for release, but whatever the reason or reasons may be, the fact remains that I am strongly of the view that you should never, ever be allowed out on the streets again.

Your case is a sad and, indeed, shocking instance of premature release because look what has resulted from it. Even if you had enjoyed 1 5 a remission for good behaviour, you would have still been socially behind bars on the night this murder and robbery were committed and an innocent, law-abiding, useful citizen might well have been alive today. It is indeed a shocking state of affairs. Quite apart from your record, there is very little to be said in mitigation of your crimes. You are, relatively 20 speaking, well educated. You attained a level of education of Standard 8. You appear to me to be certainly the most intelligent of the three of you and you are certainly no fool.

What I have already said about life imprisonment and what it means and what its consequences are for accused number 2 is equally applicable in the case of accused number 3. The purpose of a life imprisonment sentence will serve to keep him outside the community, to secure the safety of members of the public from him, and to serve as a deterrent to all persons that life is not to be taken lightly and that where murder is committed for no purpose except robbery and in association with robbery, a proper sentence, if not the death penalty, is not one necessarily limited to imprisonment for a specified and lengthy number of years, but for the term of the offender's life. You certainly can lay no 1 5 claim to mercy. As with your fellow accused, not a mention or a sign of remorse has been heard or seen from you or on your behalf.
It is with a measure of some reluctance that I do not take the easy way out and let the community be shot of you once and for all and simply impose the death sentence. But I have decided on consideration 20 that you too should spend and live your life behind prison walls. You too will derive little comfort from the knowledge that the purpose of this sentence is that you should spend each and every day and each and every night for the rest of you life in jail.
Accordingly, taking all relevant considerations into account, this is what, in my view, is a proper and appropriate sentence which I pass on you:

As I said, with reference to the  sentence passed on accused number 2, the purposes of adding a  sentence of 10 years' imprisonment to the sentence of life imprisonment is that in the event that in the uncertain future you should be considered for release whilst you are still alive, the 
1 0 years' imprisonment will still have to be served by you.
I have already referred to the fact that your premature release from jail afforded you the
opportunity of participating in this bout of savagery. Let it hang heavily on somebody's conscience if history is allowed to repeat itself.
In short, you are sentenced to life imprisonment plus 10 years' imprisonment.