Republic of South Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE No: A 562/07

In the matter of

1.	SIPHO MONGEZI MFAZWE	First Appellant	
2.	MONGEZI BOBOTYANE	Second Appellant	
3.	DINA MANUELA RODRIGUES	Third Appellant	
4.	ZANETHEMBA GWADA	Fourth Appellant	
5.	BONGINKOSI SIGENU	Fifth Appellant	

and			

	THE STATE	Respondent	

DISSENTING JUDGMENT DELIVERED :   29 OCTOBER 2009

[1] The crisp legal issue that has to be determined in this appeal on sentence, aside from the factual issues, is: Can the trial court, after having found that substantial and compelling circumstances exist as envisaged in subsection 51(3)(a) read with subsection

(1) of the Criminal Law Amendment Act No, 105 of 1997 ("the Act"), exercise its sentencing discretion to impose life imprisonment? This question impacts on Appellants 1, 2 and 3 who were sentenced to life imprisonment on the charge of murder. A useful point of departure is to ascertain the intention of the legislature as reflected in subsection 51(3)(a) and as it obtained at the time sentences were handed down in this matter.

The Law
[2]      The relevant sections of the Act are set out hereunder for the sake of convenience.

"If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence."

"Notwithstanding any other law but subject to subsections (3) and (6), a High Court shall -
a)	if it has convicted a person of an offence referred to in Part 1 of Schedule 2; or
b)	if the matter has been referred to it under section 52(1) for sentence after the person concerned has been convicted of an offence referred to in Part 1 of Schedule 2,

[3] The Act does not define what constitutes substantial and compelling circumstances. Our courts have over time explained what is understood by the term

2009 (1) SACR 552 (SCA).

The Enquiries
[5] Section 51 postulates two enquiries. The first is to determine whether there are substantial and compelling circumstances to warrant a departure from life imprisonment or a prescribed minimum sentence. If the court finds that there are no substantial and compelling circumstances to impose a lesser sentence, the court is then obliged to impose the prescribed sentence. If the court should find that there are substantial and compelling circumstances to impose a lesser sentence, the second enquiry kicks in and that is to determine an appropriate sentence.

[6] In the first enquiry, the court puts all the aggravating and mitigating circumstances, which would include the seriousness of the crime, the interest of society and the personal circumstances of the accused, into the scale. The object is to determine whether there are substantial and compelling circumstances to warrant the imposition of a lesser sentence than that prescribed. In that process the court makes a value judgment. Once the court finds that there are substantial and compelling circumstances, the court is relieved from imposing life imprisonment or a prescribed sentence for the specified offences.

[8] I disagree with the state's submission that the trial court has its normal discretionary sentencing power, as if the minimum sentencing legislation has not been passed, once it has found that substantial and compelling circumstances exist. In my view the discretion of the sentencing court has been circumscribed by the Act, the extent thereof is dependent on whether in a particular case substantial and compelling circumstances are found to exist or not. The authorities quoted by the state, do not support its contention.

[9] In the case of subsection 51(3)(a) read with subsection (1) of the Act, if no substantial and compelling circumstances are found to exist, the court has no discretion but to impose life imprisonment. However, should the court in such case find that substantial and compelling circumstances exist to impose a lesser sentence, then the residual discretion of the court is circumscribed in that the court is obliged to impose a sentence other than life imprisonment in accordance with the doctrine of proportionality by taking into consideration that the Legislature has ordained life imprisonment for such scheduled offence in the absence of substantial and compelling circumstances.

[10] In the case of subsection 51(3)(a) read with subsection (2), if no substantial and compelling circumstances are found to exist, in my view, the discretion of the court is circumscribed to the extent that it is free to impose any sentence depending on the circumstances of the case, but not less that those prescribed. However, should the court find substantial and compelling circumstances exist to impose a lesser sentence, the residual discretion of the court to impose sentence is circumscribed to the extent that it is obliged to impose a sentence other than those prescribed but in accordance with the doctrine of proportionality by taking into consideration that the legislature has ordained a prescribed sentence for such scheduled offence in the absence of substantial and compelling circumstances.

question of proportionality as follows:
"What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect and not merely pay lip service to, in the Legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed."

The Interpretation of the Impugned Provision
[12] I now turn to the interpretation of section 51. It appears that there is some ambiguity in the provisions of the section. On the one hand, the court is required to make a value judgment whether or not to impose a lesser sentence than life imprisonment or a prescribed sentence. On the other hand, once the court has made such value judgment, it appears that the court is given a discretion by virtue of the use of the word "may", either to impose or not to impose a lesser sentence. They are contradictions in terms and mutually destructive. The Legislature could never have intended such an anomaly.

[15] This becomes apparent from the fact that the Legislature has seen fit to amend the impugned section to remove the ambiguity. The legislature has substituted the word "must" for the word "may". This now obliges the court, in the event of finding that circumstantial and compelling circumstances exist, to impose a sentence lesser than the one prescribed. This amendment came into effect on 31 December 2007. The accused were sentenced on 28 June 2007, that is, six months earlier. Had those accused that were sentenced to life imprisonment, by the twist of fate, been sentenced six months later, they would have escaped the ultimate penalty.

The Misdirection on a Question of Law
[16]     The trial court was alive to the provision of the Act. At the outset of its judgment on
sentence, the trial court states:

After evaluating the evidence in respect of sentence, the trial court concludes:

"As for the charge of murder, the harshest of punishment is the only one this court can justify imposing upon the accused numbers 1, 2 and 3. No substantial and compelling circumstances can, in this case, justify a lesser sentence than that prescribed by the Act."

[17] Counsel for the state submitted that the trial court correctly found that it is not obliged to impose a lesser sentence simply because the Appellants have established factors that could be regarded as substantial and compelling circumstances. I disagree. The submission in my view, amounts to no more than semantics. The trial court concludes that in respect of each of the accused facing the minimum sentence, there are substantial and compelling circumstances that entitle it to impose a sentence other than that prescribed by the Act. Therein lies the crux of the issue. What other sentence is it entitled to impose for life imprisonment in respect of Accused 1, 2 and 3, but a term of imprisonment other than life?

[18] In my view the trial court misdirected itself on the question of law by finding that it was not obliged to impose a lesser sentence simply because the accused had established substantial and compelling circumstances. I am strengthened in that conclusion firstly, by the fact that the Legislature has sought to amend the impugned clause in order to remove the ambiguity; secondly, the Act and the authorities unequivocally speak of the "substantial and compelling circumstances to impose a lesser sentence" and where reference is made to "substantial and compelling circumstances", it is understood to be "to impose a lesser sentence" and thirdly, I have not found a single reported authority in my research, where the court, after finding substantial and compelling circumstances to impose a lesser sentence, went on to impose life imprisonment or a prescribed sentence.

The Factual Issues concerning the Appeal

Evaluation
[23] In order to arrive at appropriate sentences for Appellants 1, 2 and 3 in respect of the murder count, I will evaluate the evidence in respect of sentence. The contract murder of six months old Jordan Leigh Norton ("baby Jordan") was pre-meditated, thoughtfully planned, well orchestrated and carefully executed. The principal perpetrator was Appellant 3, who sought the killing of her lover's child, baby Jordan, for the reward of R10 000,00. Appellants 1, 2, 4 and 5 gained entry to the home of the Nortons by false pretenses. Dylan Norton and Thobeka Buso, the child-minder of baby Jordan, were threatened with knives, bound and ushered into the bedroom and later into the toilet, while the home was ransacked. Appellant 2 brutally and callously plunged a knife three times into the defenceless body of baby Jordan. She died as a result of the wounds sustained.

[27] Appellant 1 was second in command. He recruited Appellants 2, 4 and 5. He was 33 years old and the eldest of the Appellants. He was a first offender and was HIV positive. He pleaded not guilty, did not testify and showed no remorse. He protested his innocence throughout. He had a life partner and was the father of two minor children. He worked as a taxi-driver. He was in custody as an awaiting-trial prisoner for approximately two years.

[28] Appellant 2 was the foot-soldier who plunged the knife three times into the defenceless baby Jordan and inflicted the fatal wound in the neck of the child. He was 22 years old at the time of the commission of the offence. He is an orphan. He was a first offender. He is the father of a minor child. He left school in grade 7 because of poverty. He assisted a friend in a barber shop for which he received food and pocket money. He was lured into the commission of the offence because of the money. He had never earned such a lot of money at one time in his entire life. He did not show genuine remorse. He gave a watered down plea on the murder charge to exonerate himself. He did not take the court into his confidence. He disputed his confession.

The Findings
[30] I now turn to consider an appropriate sentence for Appellants 1, 2 and 3 in respect of the murder count. In my view, there were substantial and compelling circumstances not to impose life imprisonment. I cannot say with any degree of conviction that they killed out of inherent wickedness. The imposition of life imprisonment on the three Appellants would, in my opinion, be unjust as it would be "disproportionate to the crime, the criminal and the needs of society". The nature and seriousness of the murder count warrants a lengthy period of imprisonment for the three Appellants, but does not warrant them to be removed permanently from society. The question that I have to decide is what would be the term of imprisonment in respect of each of them. Each of the Appellants played an equally leading role in the execution of the crime. Appellant 3 carefully planned and orchestrated the crime. Appellant 2 recruited the other perpetrators and participated in the commission of the offence. Appellant 1 inflicted the fatal wound. Although they played different roles in that process, in my opinion, they were bound by the thread of common purpose and were equally culpable for the commission of the crime. Each of them is a first offender. Each of them has been in custody, as an awaiting trial prisoner, for approximately two years. Appellant 3 had her bail withdrawn on evidence that was suspect. Each of the Appellants was relatively young at the time of the commission of the offence. In my view each of the Appellants can be rehabilitated and returned to society as useful citizens.

[34] Taking all the mitigating and aggravating circumstances into consideration and tempering the sentence with mercy, I am of the view that a term of imprisonment of 26 years would be an appropriate sentence for the murder count in respect of each of the Appellants.

[35] I now turn to deal with the charge of robbery with aggravating circumstances against Appellants 1, 2, 4 and 5. Appellants 1 and 2 were each sentenced to 10 years imprisonment whilst Appellants 3 and 4 were each sentenced to seven years imprisonment.
The difference in sentence was due to the fact that Appellants 4 and 5 were juveniles at the time they committed the offence. I agree with the trial court that the principal objective of the accused was to kill baby Jordan. I also agree with the trial court that the robbery was committed to mask the killing of baby Jordan and was incidental to the murder. What makes the robbery aggravating was the fact that knives were used as weapons to execute robbery. Both Dylan Norton and Thobeka Buso were threatened with knives and forced to point out the safe. They were tied up, confined to the bedroom initially and thereafter to the toilet while the robbery was carried out. The prescribed minimum sentence in terms of the Act is 15 years imprisonment for the robbery charge. The trial court, having found substantial and compelling circumstances to impose a lesser sentence, sentenced Appellant 1 and 2 each to 10 years imprisonment in respect of the robbery charge. Although Appellant 5 had a previous conviction for robbery, he was treated in the same manner as Appellant 4, as he refused to stab baby Jordan with the knife. I cannot find any misdirection on the part of the trial court to justify this court interfering with such sentences.

[36] Appellant 1 was also convicted of the unlawful possession of a fire-arm and sentenced to six months imprisonment. It does not appear that the fire-arm was used in the commission of the crime. The sentence cannot be described as shockingly inappropriate or one that no reasonable court would impose or that the court has misdirected itself or not exercised its discretion judiciously. In my view, there are no grounds to interfere with the sentence imposed by the trial court in respect of such charge.

The Order
[37]     In the result the following order should be made:
(i)    The appeal of Appellants 1, 2 and 3 against the sentence in respect of the murder count succeeds. The sentences of life imprisonment are set aside and substituted with a sentence of 26 (twenty six) years imprisonment. Such sentences are antedated to 28 June 2007.