S v Makwela (SS 5/01) [2002] ZAGPHC 18 (27 March 2002)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRANP LOCAL DIVISION)

JOHANNESBURG

CASE NO; SS 5/01

DATE:2002-03-27

In the matter between :

THE STATE

and

BRIAN MAKWELA ….....................................................................................................Accused

SENTENCE

Willis, J. It is well established in these courts and reflects the accumulated wisdom of many generations that sentence should fit the criminal as well as the crime, be fair to the State and to the accused and be blended with a measure of mercy. It must also reflect the interests of society.

The accused is 24 years of age. He had obtained his matriculation and was unemployed living in Alexandra. He has shown no remorse. These crimes of highjacking are the scourge of our society. They directly deter investment in the country. They undermine the confidence of domestic and foreign investors in South Africa. They contribute to the inability of our economy to grow sufficiently to absorb the huge numbers of unemployed that we have. By participating in these crimes the accused bears a responsibility for putting others out of work. These crimes have been premeditated. They have been deliberate. They have been ruthlessly executed. One cannot but be sickened at the thought that the accused went around with a so-called order form or a shopping list, cowardly armed with a firearm easily accessible in our society. The accused participated in sickening crimes whereby he took vehicles in particular from other persons with the ease with which a person takes candy from a baby. Without showing any resistance, innocent people were ruthlessly gunned down in cold blood. Crimes such as these affect society at the core of its being. Ordinary hard working citizens know that they cannot carry on their ordinary everyday activities without fear for their safety.

Sentence, in addition to what I have said in the opening lines of this judgment, has five important functions.

1. It must act as a general deterrent. In other words, it must deter other members of the community from committing such acts or even thinking that the price for wrongdoing is worthwhile.

2. It must act as a specific deterrent. In other words, it must deter this particular individual from ever being tempted to act in such a manner again.

3. It must enable the possibility of correction unless this is very clearly not likely.

4. It must be protective of society. In other words, society must be protected from those who do it harm.

5. It must serve society's desire for retribution. In other words, society's outrage at serious wrongdoing must be placated.

Clearly in this case a lengthy period of imprisonment is warranted in order to serve each of these five functions. I have no doubt that the community as a whole cries out aloud for a lengthy and severe sentence in a case such as this.

In terms of section 51 of the Criminal Law Amendment Act No. 105 of 1997, a minimum sentence of life imprisonment is prescribed for the murder, it having been committed by the accused in attempting to

commit robbery with aggravating circumstances. Furthermore, the crime was clearly planned and premeditated and this is another ground which warrants life imprisonment for murder. For robbery, where there are aggravating circumstances or where the robbery involves the taking of a motor vehicle, a minimum sentence of 15 years is prescribed. I wish to emphasise the word "minimum" and I shall revert to this aspect later on.

The section prescribing minimum sentence is saved by subsection (3) which provides that the court may impose a lesser sentence if it is satisfied that there are substantial and compelling circumstances which justify such a lesser sentence.

The Supreme Court of Appeal, the highest court in the land in all but constitutional matters, has set out the approach which it expects the High Court to adopt in cases such as this in the case of Sv Maigas 2001 (1) SACR 469 (SCA). I quote from 4811:

"Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as a sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts. The specified sentences are not to be departed from lightly or for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders (and I take note of the fact that the accused is a first offender), personal doubt as to the efficacy of the policy underlying the legislation and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded."

Having regard to these guidelines, I am satisfied that there is certainly no weighty justification for departing from the prescribed minimum sentence to the extent that one imposes a lesser sentence. In other words, there are no substantial and compelling circumstances in this particular case which justify a sentence less than life imprisonment for the murder. There are also no substantial and compelling circumstances which justify a lesser sentence than 15 years for the crimes of robbery.

On the other hand, when it comes to count 4 which is in effect the third hijacking that the accused has been found guilty of after a victim had previously, the day before, been gunned down in cold blood and when the first count was committed several months before, 1 am in entire agreement with counsel for the State that a sentence above 1 5 years is appropriate. Although the accused did not have the benefit of a previous conviction, he had plenty of time soberly to reflect upon his actions and to desist therefrom. Not content with one cold-blooded murder, the accused was quite happy the next day to expose another person to this risk.

I am conscious of the fact that in terms of section 32(2) of the Correctional Services Act No. 8 of 1959, as amended, it is prescribed

that all other sentences imposed in this case will run concurrently with the life imprisonment for murder. In order to avoid any

confusion I shall make an order to this effect explicitly.

Count 1, the count of robbery with aggravating circumstances, as defined in section 1 of Act 51 of 1977, you are sentenced to 15 YEARS' IMPRISONMENT.

Count 2, the count of attempted robbery with aggravating circumstances, as defined in section 1 of Act 51 of 1977, you are sentenced to 7 YEARS' IMPRISONMENT.

Count 3, the count of the murder of Sergio Antonio Giovanni Bonanni, you are sentenced to LIFE IMPRISONMENT.

Count 4, the count of the robbery with aggravating circumstances, as defined in section 1 of Act 51 of 1977, committed against Irma

Lightfoot on 1 7 September 1 998, you are sentenced to 20 YEARS' IMPRISONMENT.

Count 5, the contravention of unlawful possession of a firearm, you are sentenced to 3 YEARS' IMPRISONMENT.

Count 6, the contravention of unlawful possession of ammunition, you are sentenced to 6 MONTHS' IMPRISONMENT

It is ordered that the sentences on counts 1, 2, 4, 5 and 6 are to run concurrently with the sentence on count 3. In other words, the effective sentence is life imprisonment.