South Africa: Western Cape High Court, Cape Town

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT CAPE TOWN)

CASE NUMBER: SS260/2005

DATE:

20 APRIL 2006

In the matter between:

THE STATE

and

ZUKO NAPHAKADE .......................................................................................ACCUSED

SENTENCE

ZONDI A J

Mr Naphakade, by sentencing you I have to take in into account your personal circumstances, the nature of the offence and the interest of the community.

As far as your personal circumstances are concerned, it was indicated that you are a first offender, that you were born in Oktober 1981 and you are not married, but you have two daughters who are three and one year’s respectfully. At the time of your arrest, you were staying with your parents who were looking after you, as you were unemployed. At school you past standerd ten and since you left school you have done some courses on security management, first aid and English.

This briefly summarizes your personal circumstances.

As far as the nature of the offence is concerned, is there no doubt about the seriousness thereof. You have be6n convicted of murder, attempted murder and unlawful: possession of firearms and ammunition. There was . evidence that these offenses took place in the cause of robbery and a firearm was used in committing these atrocipus offences.: Murder is a serious offence as it involve the lost of human-life which cannot be replaced. It seems to me that murder has become prevalent in these days and in moist cases illegal firearms is used in committing it.. It is for these reasons that the legislator has seen it fit to set a minimum sentence in order to deal squarely with serious offences such as. murder. This legislation prescribes minimum sentences for these offences, in other word the minimum sentence legislations sets out a minimum sentence to be imposed on a persone convicted of murder. The charges you are facing are subjected to Section 51 of Act 105 of 1997 (The Minimum Sentence Legislation). I shall return to this aspect later and I will deal more thoroughly with it.

Mr April, who gave evidence in this matter, testified on how you shot him and the deceased after instructing them to Me on the ground. They covered their faces while other, who was with you, removed various goods from the owner of the house, who he had visited. You shot them at a close range and you shot the deceased in the head. The postmortem relating to the injuries sustained by the deceased was handed in as EXHIBIT D and upon examination the deceased was found to have four gunshot wounds to the head. The gunshot: wounds trekked through the brain. Mr April was also shot four times and sustained bodily injuries.

Now as far as the interest of the community is concerned, it is correct that the community needs to be protected against offences of this nature and they are looking up to courts for protection. The only way the court can do so is by imposing appropriate sentences. It is the duty of this court to protect the community by imposing appropriate sentences and to send out the message that offences of this nature would not be tolerated.

It was argued by ms Verrier, on your behalf, that the minimum sentence legislation is not applicable in this matter, because the murder was not planned or premeditated. The prescribed minimum sentence for murder, when it is planned or premeditated, is life imprisonment- Now it is clear from the evidence of mr April that the deceased was shot at a very close range. When you shot mr April and the deceased you were over them while they were sitting. The deceased and mr April had covered their faces. The decease had covered his face with his hands, while mr April had pulled his shirt over his face. It is clear to me that you killed the deceased in execution style; you did not show any mercy to him. The deceased was defenseless and it seems to me that you killed him in order to avoid detection as possible prosecution. It is also clear from the evidence of mr April that even if the murder of the deceased was not pre-planned before you went into Thulani’s house, that is the house which mr April visited. Planning must have taken place either during the robbery or immediately after the robbery. Before you left the house, you shot the deceased and the witness,_: thereafter you closed the door and left. In these circumstances the murder charge is subject to the minimum sentence legislation. The Act prescribes the life imprisonment sentence for murder, which was either planned or premeditated, or when the victim was a person who was likely to give material evidence with reference to any offence referred to in Schedule 1 of the Criminal Procedure Act of 1977, that is the criminal proceedings in any court. I just want to make it clear that the Act prescribed the minimum sentence, but the minimum sentence is not a mandatory one. This will be a case where there are substantial and compelling circumstances and which would justify the imposition of a lesser sentence, than the sentence prescribed by legislation.

Now the question is whether there are any substantial and compelling circumstances in this matter that would justify me giving you a sentence less than the prescribed minimum sentence. I have fully investigated this and unfortunately I could not find any substantial and compelling circumstances in your favor. The only thing is that you have been in prison since January 2004, other than that there is nothing to indicate why these offences were committed and whether there was any need on your part to do so. There was ...(indistinct) in the fact that your defense was an alibi, in other words you were saying you had no knowledge of the allegations against you. In other words there is no indication that either alcohol or drug abuse was involved in this matter. Or that the deceased had done something to provoke you - there is nothing.

In the circumstances I have no alternative, but to sentence you to life imprisonment for murder. Ten (10) years for attempted murder. Count four and five relating to unlawful possession of a firearm and ammunition will be taken together for the purposes of sentence and in respect of counts four and five you are accordingly sentenced to five (5) years imprisonment. It is further ordered that sentences in respect of count two, that is attempted murder, four and five, that is unlawful possession of a firearm and ammunition, will run concurrently with the life imprisonment sentence in respect of count one. And you are declared unfit to possess a firearm license.

ZONDI, AJ