S v Zingela (CC 54/2020) [2021] ZAECGHC 48 (18 May 2021)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION,

GRAHAMSTOWN

CASE NO. CC 54/2020

In the matter between:

THE STATE

and

THEMBENTONI

ZINGELA Accused

JUDGMENT ON SENTENCE

Bloem J.

[1] On 14 May 2021 the accused was convicted of having murdered Mbulelo Matshona on 23 June 2019. He must now be sentenced for that offence. In its attempt to arrive at an appropriate sentence the court must balance the personal circumstances of the accused with the nature and circumstances of the commission of the offence and the interests of society.

[2] The accused did not lead evidence in mitigation of sentence. He placed the following personal circumstances before the court through the medium of his attorney, Mr Sojaja. He is almost 28 years of age having been born during June 1993. He is single, the father of two children, a boy of 8 years and a girl of 3 years. The boy’s mother is unemployed and lives in Port Elizabeth. She receives a child support grant with which she supports herself and the boy. The girl’s mother is sickly. She is also unemployed and also receives a child support grant with which she supports herself and the girl who is looked after by her grandmother. The accused left school in grade 12 before he matriculated because of financial reasons. The situation was so bad at the time that he did not have shoes to wear to school. At the time of his arrest the accused was employed as a farm worker earning a salary of R3 900.00 per month with which he supported his children. The accused is a first offender. He was on bail on another murder charge at the time of the commission of the offence in this case. He has subsequently been found not guilty on the first murder charge. The accused has been in custody awaiting trial since June 2019, almost 2 years.

[3] The parties are in agreement that murder is a serious offence. The result of the offence is the loss of life. Section 11 of the Constitution provides that everyone has the right to life. Murder is accordingly per se unconstitutional. In this case the deceased died as a result of a brutal attack on him. The medical evidence showed that the deceased had four wounds on his neck. The first was a large 8 x 7 cm gaping incised wound to the front of the neck. It cut through the airways, his oesophagus and jugular veins. The deceased also sustained 2 stab wounds on the left side of the neck and 1 stab wound on the right side of the neck. Except for scratch marks on the neck, superficial wounds on the upper chest, abrasions on both sides of the face and lacerations on the right lower lip and cheek, the deceased sustained a fractured jaw and right cheek bone. Dr Jan Antonie de Beer who performed the post mortem examination on the deceased concluded that the cause of death was sharp force injury to his neck which severed airways and blood vessels.

[4] Murder is prevalent within the area of jurisdiction of this court. The Legislature has responded by providing for minimum sentences for certain serious offences, murder being one of them. In terms of section 51(2)(a)(i) of the Criminal Law Amendment Act[1], because the accused has been convicted of murder in circumstances other than those referred to in Part I of Schedule 2 thereof, he shall be sentenced to imprisonment for a period of not less than 15 years, unless the court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the prescribed minimum sentence. The period of 15 years’ imprisonment would be the minimum prescribed sentence. In terms of the proviso contained in section 51(2) of the above Act, this court may impose a term of imprisonment that exceeds the minimum term of imprisonment of 15 years. Mr Engelbrecht, counsel for the state, submitted that, because substantial and compelling circumstances do not exist, this court should, because of the brutal and sustained nature of the attack on the deceased, impose a sentence of approximately 18 years’ imprisonment whereas Mr Sojaja submitted that substantial and compelling circumstances existed which justify the imposition of a sentence of approximately 10 years’ imprisonment.

[5] I shall deal with each of the factors which were highlighted on behalf of the accused as allegedly constituting substantial and compelling circumstances. The first factor is that the accused is, so the submission went, relatively young. He was 24 years old when the offence was committed. Absent an explanation as to why the deceased was killed, it can only be described as a senseless killing. In S v Matyityi[2] the court considered, as one of the factors for the determination of whether or not substantial and compelling circumstances existed, the appellant’s age. It was critical of reference by the court a quo to Mr Matyityi’s “relative youthfulness”. Ponnan JA held that “the youthfulness of an offender will invariably be a mitigating factor, unless it appears that the viciousness of his or her deeds rules out immaturity”, which is prima facie the case with a teenager. The learned Judge said that, in his view, a person of 20 years or older must show by acceptable evidence that he was immature to such an extent that his immaturity can operate as a mitigating factor. It was found that nothing in Mr Matyityi’s age of 27 served, without more, to reduce his moral blameworthiness and that his age was, at best for him, a neutral factor. I shall similarly treat the accused’s age as a neutral factor. He can certainly not be treated as an immature offender, regard being had to the manner in which the deceased was killed.

[6] The second factor relied upon was that the accused reported the incident to his uncle and aunt. That is factually incorrect. The accused did not report his own culpability to them. He reported to them that someone else had killed the deceased. That version was rejected. He cannot benefit from his own misrepresentation of the true facts.

[7] The two remaining factors that were relied upon for the contention that substantial and compelling circumstances exist in this case, were firstly, that a long term of imprisonment would cause the accused’s children to suffer; and secondly, that financial circumstances caused him to drop out of school and forced him to look for employment. In S v Vilakazi[3] it was held that once it becomes clear that the offence is deserving of a substantial period of imprisonment, the questions whether the accused is married or single, whether he has two or three children, whether or not he is employed, are in themselves immaterial to what the period of imprisonment should be. That dictum is apposite to the present matter.

[8] In addition to the above, I have also taken into account that the accused has not shown any remorse for his conduct. The absence of remorse compelled his uncle and aunt to testify against him. I am sure that it must have been a difficult exercise for them.

[9] I have had regard to the brutal nature of the attack on the deceased and the pain that he must have suffered before his death. The accused’s personal circumstances, as outlined above, should, in the circumstances of this case, recede into the background. I have come to the conclusion that none of the factors relied upon by the accused, individually or cumulatively, amount to substantial and compelling circumstances justifying the imposition of a lesser sentence than 15 years’ imprisonment.

[10] In view of the approximately two years that the accused has already spent in prison awaiting trial, I have decided not to impose a sentence in excess of 15 years’ imprisonment. I am of the view that a sentence of 15 years’ imprisonment would be appropriate if regard is had to the nature and circumstances under which the deceased met his death, the accused’s personal circumstances and the interests of society.

[11] In the result, the accused is sentenced to imprisonment for 15 years.

________

G H BLOEM

Judge of the High Court

For the state:

Mr J Engelbrecht of the office of the National

Director of Public Prosecutions, Grahamstown.

For the accused: Mr V Sojaja of Legal Aid Centre, Grahamstown.

Date heard: 14 May 2021.

Date of delivery of judgement: 18 May 2021.

[1] Criminal Law Amendment Act, 1997 (Act 105 of 1997).

[2] S v Matyityi 2011 (1) SACR40 (SCA) at par 14.

[3] S v Vilakazi 2009 (1) SACR 552 (SCA) at par 58.