S v Mathe (CC145/2017) [2018] ZAGPPHC 890 (24 August 2018)

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISON,

PRETORIA

CASE NUMBER: CC 145/2017

THE STATE

Versus

KITJA JOHN MATHE

JUDGMENT ON SENTENCE

Introduction

[1] The accused was convicted of the murder of Makanana Mathe (‘the deceased’), committed under circumstances falling within the purview of section 51 of the Criminal Law Amendment Act 105 of 1997 (“The Criminal Law Amendment Act”) in that the offence that he committed was planned or premeditated.

[2] In considering sentence the Court must have regard to the seriousness of the offence, the personal circumstances of the accused and the interests of society; these must be balanced with the factors that may constitute substantial and compelling circumstances that warrant deviation from the prescribed sentence. The considerations have become well-established as the Zinn triad, namely, the crime, the offender and the interests of society. See S v Zinn 1969(2) SA 537 (A) at 540G.

Substantial and compelling circumstances

[3] When determining whether there are substantial and compelling circumstances to justify a lesser sentence a trial Court must

consider all factors that may reduce the blameworthiness of the offender and mitigate culpability to come to the conclusion whether

substantial and compelling circumstances exist or not. This aspect was set out clearly in the well-known decision of S v Malgas 2001 (1) SCACR 469. The Court summarised its approach at 470-471 as follows:

A. “Section 51 has limited but not eliminated the court’s discretion in imposing sentence in respect of offences referred to in Part 1 of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2).

B. 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 the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C. 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.

D. 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, personal doubts 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.

E. The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick (‘substantial and compelling’) and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H. In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against

sentence as the sole criterion.

I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the benchmark which the Legislature has provided.”

[4] The concept of substantial and compelling circumstances is not defined in the legislation but is a discretion that has been given to the Courts, to determine on a case by case basis, as to what constitutes compelling and substantial factors. A factor does not have to be uncommon to warrant its departure from the prescribed minimum sentence but can be justified, having regard to the weight of all the relevant factors, where there is a justification for doing so.

Deterrence or retribution

[5] Sentencing demands that in serious crimes of this nature that the accused must be punished but that mitigating circumstances must be taken into account and that the position of the accused and the circumstances of the offence deserve thorough consideration. We are strongly guided by the case S v Holder 1979 (2) SA and S v Rabie 1975 (4) SA 855 (A) which was a significant case on this aspect here the Court stated that:

“punishment should befit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances.”

[6] A Court is therefore obliged to consider all the sentencing options. The purpose behind a sentence was set out in S v Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35:

‘Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones.’

‘. . . [i]t is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves

neither the interests of justice nor those of society.’

[7] Referring to R v Swanepoel 1945 (AD) 444, the court in S v Khumalo and Others 1984(3) SA 327 (AD) at 330 D-E held that deterrence was the ‘essential’, ‘all important’, ‘paramount’ and ‘universally

admitted’ object of punishment. It further held that the other purposes of punishment are accessory to deterrence. The retributive theory has to do with punishing a past wrongful act, whilst reformative, preventive and deterrent theories are all about the future, “in the good that would be produced as a result of the punishment” as observed in Rabie supra at 862A-B.

[8] It was pointed out by the Court in the case of R v Karg 1961(1) SA 231 (A) at 236A-B that while the deterrent effect of punishment has remained as important as ever, the retributive effect, whilst by no means absent from the modern approach to sentencing, has tended to yield ground to aspects of prevention and correction. The Court went on further to state that if sentences for serious crimes are too lenient the administration of justice may fall into disrepute and injured persons may be disposed to taking the law into their own hands.

[9] That retribution and deterrence are well recognised factors in punishment was also recognised by Nugent JA in S v Swart 2004 (2) SACR 370 (SCA) where the learned Judge of Appeal stated in paragraph 12 that:

“[12] What appears from those cases is that in our law retribution and deterrence are proper purposes of punishment and they must be accorded due weight in any sentence that is imposed. Each of the elements of punishment is not required to be accorded equal weight, but instead proper weight must be accorded to each according to the circumstances. Serious crimes will usually require that retribution and deterrence should come to the fore and that the rehabilitation of the offender will consequently play a relatively smaller role.”

Prescribed minimum sentence

[10] The legislature has prescribed minimum sentences in respect of serious and violent crimes with the introduction of the Criminal Law Amendment Act in 1997. Section 51(1) read with Part 1(a) of Schedule 2 of the Criminal Law Amendment Act prescribes a minimum sentence of life imprisonment where murder was premeditated or planned. In terms of section 51(3)(a) the Court may deviate from the minimum sentence prescribed if it finds that there are substantial and compelling circumstances justifying imposition of a lesser sentence than of that which is prescribed. For a Court to come to that conclusion that a specific crime warrants a deviation from the prescribed sentence it must consider the evidence before it, together with other relevant factors traditionally taken into account when sentencing, together with the principles or purpose of sentencing set out in the judgments referred to above.

[11] With regard to life imprisonment, the Supreme Court of Appeal in S v Bull and Another; S v Chavulla and Others 2002 (1) SA 535 (SCA) at para 23 held respectively that:

‘it is the possibility of parole which saves a sentence of life imprisonment from being cruel, inhuman and degrading punishment’

and;

“life imprisonment was appropriate and that it was a case where a recommendation was justified in the light of the number and seriousness of the murders, the accused’s strong image of cold-bloodedness, his lying and the total absence of any remorse and his unlikely rehabilitation. The accused was sentenced to life imprisonment on each of the counts and it was recommended that he not be released before he had served 40 years imprisonment.”

Mitigating and aggravating circumstances:

[12] I deal with all the issues submitted by the parties during the sentencing proceedings, as well as the evidence that was led during such proceedings and during the main trial.

The offender:

The accused’s personal circumstances.

[13] It appears from the evidence in the main trial that he was a breadwinner and care taker of his mother the deceased in this

matter. The accused has no previous convictions.

The accused’s emotional state:

[14] The accused testified in the main trial that he did not suffer from any form of mental illness or emotional stress prior to the incident that occurred on 19 April 2017 and that he and the deceased shared a good emotional relationship. The evidence of the witnesses corroborated his version except for his cousin Jane Makabate who despite testifying that the accused and the deceased shared a good relationship, that they would sometimes have arguments. She testified that the deceased had told her that the accused had assaulted her and that she also observed bruises on the deceased. She further testified that the deceased did not lay any charges of assault because she loved her son and she did not want him to be arrested.

[15] During the main trial, no evidence or argument was led on the emotional condition of the accused. The accused implied a defence of non-pathological criminal incapacity in his Section 115(1) by alleging a combination of emotional stress from the hearing of mixed voices in his head and the consumption of poison in an attempt to kill himself. The accused stated that after hearing the voices that he did not feel well and that he was getting angry. Under cross-examination by the State in regards to whether he suffered a bad temper on the night, the accused merely stated that there was a good relationship between him and the deceased but did not offer any further explanation in this regard. Counsel for the defence did not argue, despite the accused alleging that he consumed the poison after hearing the voices in his head that this was to be considered an emotional stress factor by the Court. The defence failed to adduce evidence that the consumption of the poison disturbed the natural inference to be relied on by the state in a defence for non-pathological criminal incapacity. The defence did not even allege that any other emotional factor which would have mitigated against the level of consciousness of the accused. In fact to the contrary, the accused in his Section 220 statement admitted to the authenticity and correctness of the psychiatric evaluation report compiled by Dr C Kotze and handed in as ‘Exhibit E’. This together with the amended plea wherein the accused deleted the exculpatory parts of evidence that incriminated him was a clear indication that the accused’s actions in killing the deceased was premediated and or planned and not owing to any spontaneous outburst or emotional stress factor.

The nature of the offence

[16] The crime of murder is loathsome and despicable. Disgust and outrage are justifiable reactions and a more balanced look is more difficult to achieve when it is constitutes a murder by a member of the family in respect of other members of the same family. Gruesome family murders are becoming the order of the day in this country.

[17] The accused has been convicted of a very serious offence. The circumstances surrounding the killing of the deceased in this case are gruesome and in need of special mention. The evidence indicates that the deceased was killed in a cruel manner by use of a knife and an axe by the accused. The post-mortem of the deceased compiled by Dr K Morobadi and admitted as ‘Exhibit C’, revealed that the deceased died as a result of ‘Sharp force Injury (Dismembered and mutilated body) and illustrate the dreadful nature of the killing of the deceased. The report detailed the external appearance and condition of the body the internal organs were removed in a single block; both left and right rib cages were disarticulated from the sternum. Disarticulation of the wrists and ankles. The right hand was dissected along the second web space dividing the hand in two pieces. No external genetalia or sternum could be identified.

[18] The killing of the deceased was found to have been planned. I found that the accused’s actions were proof of his attempt to evade justice and to defeat the ends of justice. Firstly, the explanation that he gave for not seeking out the authorities or medical assistance on discovering the body the following day was that he was frustrated and confused was a probable evasion of arrest. Further that he locked the house and left the deceased’s remains in that condition because he was afraid of that the community would attack him so he went to Polokwane to see his father and explain what had transpired also to be riddled with improbabilities. Even if it were to be accepted that he only discovered it on the morning and only partly recalling his actions the previous night, it was incumbent upon him to immediately inform the police station. He admitted that he recalled stabbing the deceased and that it occurred to him that he may have mutilated the deceased’s body as well.

[19] The actions and or brutal attack of the deceased speak of a man unmoved by the loss of the life of another. The accused had ample time for reflection and reconsideration but consciously chose to conceal the circumstances surrounding the death of the deceased, to hide the body and the weapons used to commit the crime. He also did not hand himself over to the police. He merely cooperated after his arrest. That, to my mind does not speak to the actions of a man hurt by the loss of his mother but rather indicate a desire to try and mitigate the unfortunate consequences of being apprehended and charged.

Impact of the deceased’s death on the family

[20] Tumi (Rosina) Masego, the sister of the accused and daughter of the deceased, testified that the deceased was 72 years old and that the accused lived with the deceased. The witness testified that the accused and the deceased had a good relationship, that he accused took care of the deceased and that he even did the cooking and the cleaning. She stated that she was unaware that the accused had assaulted the deceased but also stated that she did not live with them and only returned home 2-3 times during the month. She also further testified that when she had spoken to the accused the morning following the incident he initially avoided her calls and when she eventually did reach him and asked why the deceased was not answering her phone he told her that the deceased was in the toilet. She further testified that she did not speak to him after the body of the deceased was discovered because she was angry but that she did visit him in imprison. The accused had told her that he heard voices in his head and that he only remembered that he stabbed the deceased. The witness could not provide an explanation as to why the deceased had not informed her about the alleged assaults by the accused and stated that she would have reported him to the police. The Court is mindful that the witness did not live with the deceased or the accused and therefore could not have reasonably been expected to know that the accused was assaulting the deceased and based on this the witness’s evidence regarding the strength of the relationship between the accused and the deceased may not have been a true reflection of the facts. Also the witness together with Jane Makabate had discovered the mutilated body of the deceased.

[21] Jane Makabathe is the cousin of the accused and niece of the deceased. She testified that she frequently visited the deceased and the accused who lived in one house as she lived just 20 minutes away. She testified that although the accused and the deceased had a good relationship they did argue and she often saw bruises and swelling on the deceased. She stated that the deceased had told her that the accused had assaulted her but refused to lay charges against him. She testified that she had received a call from the accused’s sister who had asked her to check up on the deceased as she was not answering her phone. Upon arrival at the house she found the deceased mopping the kitchen floor. When she enquired about the whereabouts of the deceased he indicated to her that he deceased had gone to extension 5 to visit a friend. She could not locate the deceased and later on that day she discovered the mutilated body of the deceased together with Tumi. The Court found the witness to be credible in her version and accepted her reflection of the facts.

Interest of society

[22] Many cases involving murder or violent crimes between members of the same family have become prevalent and have frequented our courts. In Kekana v The State (629/13) [2014] ZACSA 158 (1 October 2014) Mathopo AJA (as he then was), remarked at para 20 as follows:

“Domestic violence has become a scourge in our society and should not be treated lightly. It has to be deplored and also severely

punished. Hardly a day passes without a report in the media of a woman or a child being beaten, raped or even killed in this

country. Many women and children live in constant fear for their lives. This is in some respects a negation of many of their fundamental rights such as equality, human dignity and bodily integrity. This was well articulated in S v Chapman when this court said the following:

‘Women in this country… have a legitimate right to walk peacefully on the streets, to enjoy their shopping and their entertainment to go and come from work and to enjoy the peace and tranquillity of their homes without the fear the apprehension and the insecurity which constantly diminish the quality and the enjoyment of their lives.’”

It is aggravating that the accused was the care taker of the deceased and a person whom the deceased relied on not just in regards to her health but that of her safety. Particularly that the commission of the crime occurred in the confines of her home and specifically her bedroom, a place enjoyed by vulnerable members of the society and considered to be a place of protection against the violence of the outside world. In this case the accused attacked a vulnerable and unarmed elderly woman who was his mother. What is more concerning and serious is that the deceased, for her own reasons, did not consider seeking protection against the accused and the abuse which ultimately led to her death. This specific crime is worth mentioning with regards to the intimidation and vulnerability of woman in domestic abuse cases. They face constant fear and guilt that makes approaching the Courts that much more difficult.

The question of diminished criminal responsibility

[23] There are many cases wherein non-pathological criminal incapacity was rejected as a defence, but was still found to have had an overwhelming effect on the conduct of the accused.

In a more recent SCA decision of S v Kekana that there were substantial and compelling circumstances to deviate from the sentence of life imprisonment in that the accused had pleaded guilty; had shown remorse for his actions; was a first offender and therefore there were prospects that he could be rehabilitated and also that he was in a turbulent relationship with the deceased where lack of trust played a major role; he felt abused and belittled by the deceased and that when his clothes were packed in a bag in the dining room he felt provoked and snapped. Despite all those factors, the Court found that the cruel and painful death of the deceased at the hands of her husband, the fact that she was killed in the one place that she ought to have been safe, the sanctity of her home, were aggravating. Worst of all, after the house was set alight he failed to rescue her and secure medical assistance for her. The Court found that the callous and heartless attitude in not checking the condition of the deceased was clear proof of his lack of remorse. It agreed with the trial Court that this conduct did not manifest genuine remorse in the manner described in S v Matyityi 2011(1) SACR 40(SCA) at para 13.

Remorse

[24] The accused throughout his evidence remained calm and composed indicating to the Court although he indicated that he was remorseful

and regretted what had happened his conduct was resigned for a man who had unintentionally murdered his mother. The Court however did note that the accused was unable to remain his composure when his sister took the stand and broke down emotionally. The Court is S v Matyityi supra at para 13 examined the question of remorse by stating the following:

“...There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a knowing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia, what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions…”

In Matyityi supra the Court increased the sentence from 25 years to life imprisonment on the basis, inter alia, that the respondents conducted themselves with a flagrant disregard for the sanctity of human life or individual physical integrity. They acted in a manner that was unacceptable in any civilised society particularly one that ought to be committed to the protection of the rights of all persons including women (See para 24).

[25] In the present matter, the accused did not report the death of the deceased or report himself. Instead shortly after the incident he lied to all the witnesses who enquired about the deceased’s whereabouts. During his evidence he told the Court that he did remember stabbing the deceased and that he did not report the matter or had not informed anyone because he was confused and frustrated. During his evidence however, he gave a detailed account of the events that happened on that day immediately before and after the commission of the crime. One wonders if he was truly remorseful for his actions as he did not take the Court fully to his confidence regarding what happened on the day of the incident. It is concerning that his memory was selective on very crucial aspects of the incident, especially on parts that tended to be incriminating, such as that he did not remember anything that had happened when he woke up the morning after consuming the poison, but suddenly remembers when he got to the deceased’s room door and saw the blood visible underneath the door that he stabbed the deceased in the neck. His memory was only distorted in regards to those parts of that particular night in the time of the actual crime but appeared again when he woke up the next morning.

[26] What is concerning is that the accused does not seem to take full responsibility for his actions. He does acknowledge that he stabbed the deceased, but yet he continued to state that it was because of the voices in his head. He did not appreciate the gravity of his actions or and was not willing to accept blameworthiness. That in my view is an indication of genuine remorse.

The deceased was an elderly woman and prominent member of the community and church. The accused also did not allege that there was any provocation owing to his actions of part of the deceased.

Are there substantial and compelling circumstances?

[27] An interpretation of the cases above all shown a clear motivation behind the actions of the accused in each case. As was observed in the cases I have referred to above, the action of the accused, (i.e. stabbing and dismembering the body of the deceased), did not happen in a spur of a moment as a spontaneous reaction to provocation, driven by anger or other emotion where the accused had no sufficient time to consider his actions. In the present case no clear motive was present and none was presented before the Court. The Court however concluded that the manner in which the body was dismembered, where the organs were removed in a single block and placed in a separate bucket beside the bed, and possibly with an intention to sell the body parts. The Court concluded that in the absence of any provocation that the only conclusion that could be drawn for such a heinous murder and in viewing the brutality of the physical condition of the deceased’s body that the attack was planned and premeditated.

[28] The accused testified that the trigger to his actions was the voices that he heard in his head or alternatively implied that it was due to the consumption of the poison. Furthermore, it appears to me that he the accused intended to drink the poison as an exculpatory defence for his actions and which he had done so knowing fully well his intentions of killing the deceased. It is noteworthy that the deceased had found the poison and had shared the information of the accused attempting to kill himself with her daughter Tumi, a day before the accused alleges that he actually drank the poison. In all probability it was always the intention of the accused for the deceased to have seen the poison and to share her concerns with family members to aid him later on in his testimony of a defence of non-pathological criminal incapacity should he ever have been implicated in the crime. This case possibly borders the ‘crimes of vengeance’ and was possibly due to some argument that ensued between the deceased and the accused given his delayed reaction in the vents immediately after the discovering the deceased’s dismembered body. The Court or the community will never know the real motive behind the gruesome killing as the accused did not take the Court fully into his confidence.

[29] A striking distinguishable feature between the Kekana case supra and this case is the relationship between the accused and deceased is that in the Kekana case that was a protracted period of turmoil between the parties and no evidence of such in the present case. In the present matter, the accused had not been in situations where his emotions were heightened. There is no evidence to suggest that the tragic events were unavoidable or even foreseeable.

The accused who admitted that he even though he was experiencing hearing voices in his head did not seek medical assistance or avail himself to any form of assistance rather than electing to commit suicide which ultimately according to his version lead to the demise of the deceased.

[30] It is troubling that the entire body of the deceased was dismembered and the callousness with which it was done. This is not a case where the firearm was depressed once and fired shots automatically. The removal of the organs and its separation from the rest of the body was evident that the accused intended to sell them. The accused did not try to assist the deceased after the discovering the body nor seek help or medical assistance for her, as a true sign of showing remorse about for what he had done. It was his family members that tried to seek help for the deceased. Jane testified that she received a call from Tumi regarding her concern for her mother that she tried locating the deceased. Eventually together and with the help of Given they broke down the doors and they found the body of the mutilated body of the deceased.

[31] Having outlined all the factors, I am of the view that aggravating factors outweigh mitigating factors in this case. Reasons for that are evident from what I have outlined above. I have taken into account the accused’s personal circumstances; his emotional condition and mental capacity which he states has not been affected since. In that regard I have found that he had the choice to report the incident, to seek assistance and to hand himself over to the police. Furthermore, as I have shown he did not take the Court into his full confidence in the main trial.

[32] I am mindful that the accused is relatively still a young man who was financially supporting his family and a first offender and that he embroiled himself in a situation that led to tragic consequences. He came across to me as an intelligent man during the trial. With no emotional factor or history of a tumultuous relationship between the accused and the deceased, I cannot ignore aggravating factors, the nature of the offence, the fact that the accused was his mother’s care giver and was to protect her but attacked the deceased in such a brutal manner. The Court is however confronted with a serious and a violent crime in a country where violence against women and children are escalating. In this case, the deceased was an unarmed elderly woman who could not have done anything to protect herself.

[33] In view of all the factors, accumulatively, I find there to be no substantial and compelling circumstances as envisaged in section 51(3) of the Criminal Law Amendment Act 105 of 1997 to deviate from the minimum sentence ordained for this type of crime. In my finding, the aggravating circumstances far outweigh the mitigating factors.

[34] In the result I make the following order:

1. The Accused is sentenced to life imprisonment on both counts.

2. The Accused is sentenced to life imprisonment in terms of Section 51(1)(a) and of the Criminal Law Amendment Act 05 of 1997.

3. The Accused is declared a dangerous criminal in terms of Section 286A (1) of Act 51/1977. In terms of Section 286B(1) the Accused is sentenced to undergo imprisonment for an indefinite period and it is directed that the Accused shall be brought before this Court on expiration of a period of 25 years to enable this Court to reconsider sentence as contemplated in terms of Section 286B(2).

4. The Registrar of this Court is herewith directed to furnish the Head of the prison to which the Accused is sent with a copy of the Court’s judgment.

5. The Accused is found unsuitable to work with children and old people.

6. The Registrar of this Court must in terms of Section 112(1) of the Children’s Act, notify the Director General, Department of Social Development in writing of Section 120(4) of the Children’s Act that the Accused is unsuitable to work with children and old people, for the Director to enter the name of the Accused as contemplated in terms of Section 120 in part 2 of the Register.

7. In terms of the Firearms Act 60 of 2000, the Accused is declared unfit to possess a firearm.

SARDIWALLA J

JUDGE OF THE HIGH

COURT

APPEARANCES

Date of hearing

: 21 AUGUST 2018

Date of judgment

: 24 AUGUST 2018

Counsel for the State

: Adv.: S Scheepers

Counsel for the Defendant

: Adv.: M Masete