[WESTERN CAPE HIGH COURT, CAPE TOWN]

									

In the matter between:

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					Firth Appellant
and

THE STATE

JUDGMENT DELIVERED: 29 OCTOBER 2009

LE GRANGE, J:

Introduction:

[1] I had the opportunity of reading the judgment of my learned Brother, Moosa J. (The dissenting judgment). It is correct as articulated in his judgment, that the main legal issue for determination, aside from the factual issues, in this appeal is whether the trail court, pursuant to its finding that substantial and compelling circumstances exists, as envisaged in subsection 51(3)(a) read with subsection (1) of the Criminal Law Amendment Act No, 105 of 1997 ("the Act"), was entitled to impose life imprisonment. This issue is important as it impacts on Appellants 1, 2 and 3 who were sentenced to life imprisonment on the charge of murder.

[2] Regrettably, I am constrained for the reasons stated herein, to disagree with Moosa J's reasoning that a trial court is precluded from imposing life imprisonment. I am also in profound disagreement with the result in respect of Appellants 1, 2 and 3 in the judgment.

The Law:

[7] I will now return to the issue under consideration in this appeal and the reasons why I fundamentally differ from Moosa, J's approach and interpretation of the subsection.

[8] Section 51(3)(a) of the Act which was applicable, before its amendment on 31 December 2007, read as follows:

(a)   if it has convicted a person of an offence referred to in Part 1 of schedule2; or
(b)    if the matter has been referred to it under section 52(1) for sentence after the person concerned has been convicted of any offence referred to I Part 1 of Schieddule 2, sentence he person to imprisonment for life"

[9]    The new amended subsection reads as follows:

[11] In my view subjective factors alone cannot be indicative if the imposition of a lesser sentence is justified or not. The second enquiry is as important as the first. It is during this enquiry that the proportionality test is applicable whether substantial and compelling circumstances exist or not.

"In my view the punishment must frstly be reasonable, i.e. it should refect the degree of moral blameworthiness attaching to the offender, as well as the degree of reprehensibleness or seriousness of the offense. Punishment therefore should ideally be in keeping with the particular offence and the specifc offender. It is necessary, secondly, for the punishment to clearly reflect the balanced process of careful and objective consideration of all relevant facts, mitigating and aggravating. The sentence should, thirdly, reflect consistency, as far as is humanly, possible, with previous sentences imposed on similar offenders committing similar offences, lest society should believe that justice was not seen to be done. Lastly, the penal discretion is to be exercised afresh in each case, taking the facts of each case and the personality of each offender into account To all this I would add that the trial Court does not impose sentence in vacuo. It, to the contrary, certainly does so within a certain frame and at a certain stage in the development of the people(s) of a district, or a country, or even a continent The criminal court is also an instrument in the hands of society, applying its laws, refecting its value and its moral indignation at unlawful conduct, as well as the negative or harmful effect thereof on third parties or society itself But in a civilised society punishment refects also the interest of the offender himself The trial Court, in a criminal matter then functions not in a technical laboratory, but as a living instrument, a vital component of the fabric of society, serving the interest of society and all of its law- abiding members. The criminal court primarily seeks to establish and maintain peaceful co- existence among members of society within a territory to life and property by dispensing criminal justice. Furthermore, during the imposition of punishment, the trial court jealously guards the fine line between raw revenge or emotional punishment and the judicial, reasonable and objectively balanced (effective) exercise of its penal discretion."

[14] It is only when a court has properly applied these enquiries that it can determine if substantial and compelling circumstances justify the imposition of a lesser sentence or not to the particular offence.

[17] I am therefore satisfied that the relevant subsection did not create an ambiguity nor did it limit a court's discretion to impose a heavier sentence pursuant to a finding that substantial and compelling circumstances exists. Moreover, the lack of decided cases to impose a heavier sentence can hardly be a justifiable reason that the subsection limits a court's sentence discretion in that regard.
Evaluation:
[18] The facts on which the convictions are premised have been adequately set out in the judgment of Moosa J, and will I only refer to it where necessary.

"It is the course so that the motives which prompt the hiring of contract killers may vary from those which are undeserving of any sympathy whatsoever to those which evoke a great deal of sympathy. And these variations in motive are equally obviously highly relevant to the sentence imposed. But after all is said and done, a contract killing for reward is involved. That is, I believe, in the eyes of most reasonable people, an abomination which is corrosive of the very foundations of justice and its administration. While there is clearly room for differentiation of sentences in even contract killings because the degree of repugnancy of the motive in one case may be less than that in another, a court must face the fact that, whatever the motive, a remedy which society rightly regards as an abomination has been unlawfully resorted to by the accused. If no greater sanction for that than a non-custodial sentence is said by this Court to be an appropriate response to a contract killing, I believe it will undermine public confidence in the courts, encourage a belief that those who instigate contract killings will not necessary be visited with incarceration, foster a perception that, provided one's motives are subjectively pure and no matter how unreasonable and culpable one's failure to explore or , make use of other or less drastic options may be, society will not be greatly offended by one's engagement of killers to do away with another human being. It is similar to the kind of reasoning to which vigilante lynch mobs resort to excuse their actions: A noble motive and a genuine lack of faith in the ability of the law to deal effectively with the victim and protect the public from his or her violence."

[22] The trial court in considering all the relevant factors and circumstances pertaining to sentence stated the following on page 3868 of record:
"Having considered all of the factors as contained in the pre-sentencing reports; as presented from the bar; and taking into account the fact of the accused incarceration, I am satisfied that, in respect of each of the accused facing the minimum sentences, there are substantial and compelling circumstances that entitles me to impose a sentence other than that prescribed by the Act. However, I am not obliged to impose a lesser sentence simply because the accused have established substantial and compelling circumstances. This finding allows me to determine a sentence that is fair in all the circumstances. In so far as their conviction for robbery is concerned, I am of the view that imposing the minimum sentence of 15 years imprisonment will be disproportionate to the offence. The robbery while extremely serious was a secondary offence, committed in an attempt to hide the real objectives of their action. As to the charge of murder the harshest of punishment is the only one this Court can justify imposing upon 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 With regard to accused numbers 4 and 5 they are juveniles when they committed the crimes. Although I do not consider correctional supervision in any form appropriate because I believe both of them to be perpetrators as well as victims I have no hesitation in imposing a substantially lesser sentence upon them."

[23] It is evident from the abovementioned that the trial court did apply the two-stage enquiry, but did not find that the substantial and compelling circumstances in respect of Appellants 1, 2 and 3, justified a lesser sentence. This is made clear from the wording that 'no substantial and compelling circumstances can, in this case, justify a lesser sentence than that prescribed by the Act'. On a conspectus of the totality of circumstances of all the Appellants, I am in agreement with this finding of the trial court.

Norton, her lover's child, for the reward of R 10 000.00. The Appellants 1, 2, 4 and 5 gained entry to the home of the Norton's by false pretences. The motive for this callous killing of a six month old baby in the sanctity and security of her home can evoke very little mercy or sympathy, if any.

[25] There was also ample time and opportunity for all the Appellants a day before the killing to come to their senses and desist from committing these offences when an attempt by Appellants 1, 2, 4 and 5 to enter the Norton's house was thwarted by the uncle of the deceased. The Appellants however persisted with their plans and by false pretences of delivering a parcel, the following day, entered the Norton's house. The deceased was forcefully taken away from the nanny, who at the time was feeding her, and was butchered to death like an animal.

[26] The contract murder of the deceased was pre-meditated, well orchestrated, carefully planned and executed. The substantial and compelling circumstances that exist in respect of Appellants 1, 2 and 3 do not in my view justify the imposition of a lesser sentence other than life imprisonment, and is the imposed sentence not disproportionate to the offence.

[27] I am satisfied that the trial court did not misdirect itself on the law or the facts in sentencing the Appellants in this matter. It follows that the appeal by the Appellants cannot succeed.

[28]   In the result I will propose the following order.

	The appeal against sentence by the Appellants is dismissed.
						LE GRANGE, J

I  agree. It is ordered.
						TRAVERSO, DJP