S v Mashinini and Another (CC 75/85) [2003] ZANWHC 3 (28 January 2003)

CASE NO. CC 75/85

IN THE HIGH COURT OF SOUTH

AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

JOHANNES STEPHEN MASHININI 1ST

APPELLANT

ROBERT MONCHO 2ND

APPELLANT

and

THE

STATE RESPONDENT

______________

ADVICE TO THE PRESIDENT OF

THE REPUBLIC OF SOUTH AFRICA

IN TERMS OF SECTION 1(3)(a) OF THE CRIMINAL LAW AMENDMENT ACT, NO. 105 OF 1997

INTRODUCTION

[1] Mr Johannes Stephen Mashinini, hereinafter referred to as the first Appellant, and Mr Robert Moncho, hereinafter referred to as the second Appellant, were convicted of murder and other charges on 17 December 1985. They were sentenced on 18 December 1985 as follows:

First Appellant

Count 2 - Attempted Robbery 9 years imprisonment

Count 7 - Attempted Murder 7 years imprisonment

Count 8 - Murder Death penalty

The sentence in count 7 was ordered to run concurrently with the sentence in count 2.

Second Appellant

Count 2 - Attempted Robbery 9 years imprisonment

[2] The convictions and sentences were appealed against. The Appellate Division dismissed the appeal in respect of counts 2 and 8 but upheld the appeal in respect of count 7 and set aside both conviction and sentence.

[3] Pursuant to the provisions of s 1 of Act 105 of 1997, the matter was referred to this Court. Since the Presiding Judge retired and died many years ago, I took it upon myself to deal with this matter.

CONSIDERATION

[4] I have read the relevant parts of the record including the judgments of the trial Court and the Appellate Division. I have received and considered the written arguments filed on behalf of the Appellants and the State. These parties are in agreement that the sentences imposed on the first and second Appellants should be reduced to 20 years imprisonment and 18 years imprisonment respectively. The reasons therefor are briefly set out below.

REASONING

[5] The trial Judge expressed an opinion that if the death sentence were not mandatory in respect of count 8 (murder), he would have imposed a sentence of 20 years imprisonment or more on the first Appellant. The learned Judge went on to say that he would, if he had a discretion, have imposed ‘a sentence of at least a couple of years lesser than the sentence of Mashinini.’

CONCLUSION

[6] The Appellants and the deceased were all on a mission to rob a Mr Segoe in Phokeng. The first Appellant accidentally shot at and killed his co-robber, the deceased in this matter. It is for this murder that the Appellants were convicted and sentenced to death.

[7] A consideration of all the facts including the circumstances surrounding the killing, the personal circumstances of the Appellants and the interests of society dictate that a sentence other than life imprisonment would be appropriate. I am persuaded that the sentences which are in accordance with justice are those suggested by the trial Judge and counsel for the Appellants and for the State.

RECOMMENDATION

[8] Pursuant to s 1(3) of Act 105 of 1997 my advice to His Excellency the State President is that he should in terms of s 1(4) of Act 105 of 1997:

a) set aside the sentence of death imposed on both the first and second Appellants; and

substitute the sentences set out below for the sentence of death:

(i) first Appellant - 20 years imprisonment

(ii) second Appellant- 18 years imprisonment

Both sentences are to be antedated to 18 December 1985, which is the date on which they were imposed.

______

M.T.R.

MOGOENG

JUDGE PRESIDENT - MAFIKENG

28 January 2003