S v Mshubi and Another

• Jurisdiction: South Africa
• Judge: D Dosio J
• Judgment Date: 18 February 2022
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 18 February 2022
• Docket Number: SS69/2021

Dosio J:

SENTENCE:

[1]

Accused 1 has been found guilty of six counts. Count one is the crime of murder read with the provisions of s51(1) and Part 1 of schedule 2 of Act 105 of 1997 ('Act 105 of 1997'). Count two is a charge of housebreaking with the intention to commit the crime of robbery and kidnapping. Count 3 is a charge of robbery read with the provisions of s51(2) and part II of schedule 2 of Act 105 of 1997. Count 4 is a charge of kidnapping. Count 5 is a charge of attempted extortion and count 6 is a charge of defeating or obstructing the administration of justice. Accused 2 has been found guilty of five of the same counts as accused 1, with the exception of the charge of attempted extortion which is count 5.

[2]

For purposes of sentence this court has taken into consideration the accused's personal circumstances, the seriousness of the offences and the interests of the community. The court has borne in mind the main purposes of sentence which is deterrence, retribution, reformation and prevention.

PERSONAL CIRCUMSTANCES OF THE ACCUSED:

[3]

The personal circumstances of accused 1 are as follows:

He was born in the Eastern Cape on the 26th of November 1985 and is 37 years old. His highest level of education is standard 3 as he dropped out of school due to financial constraints. His biological mother passed away when he was 8 years old. He was raised by his stepmother. He is married and has 3 children aged 2, 9 and 16 years old. Prior to his incarceration he was the primary caregiver of these children, but due to his incarceration the mother of the children has taken them to a place that is unknown to him. Prior to his incarceration he was no longer employed because the people where he was working as a security guard lied to his employer saying that he had broken into their trucks and had stolen diesel. He used to earn R2000 but due to these allegations his salary for

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Dosio J

one month was reduced to R1000. He did not have enough money to buy milk, nappies and formula for the youngest child. After he was dismissed as a security officer he tried to look for employment but he did not even have enough money for taxi fare. In conclusion this accused stated that he wanted the family to forgive him as it was never his intention to kill the deceased. Accused 1 has a previous conviction of robbery committed in 2009 for which he was sentenced to two-years imprisonment.

[4]

The personal circumstances of accused 2 are as follows:

He was born on 22 September 1990. He is currently 31 years old. He has 2 children aged 2 and 5 years respectively. His kids are in the Eastern Cape and they live with their mother who is unemployed. The highest grade accused 2 passed was standard 5. He dropped off in standard 6 because of financial constraints. He has been in custody since May 2021. He was staying in Pumla Mqashi with his sister prior to his arrest. He stated that he helped accused 1 to commit the crime because he wanted money. He was going to send the money to his kids in the Eastern Cape. The last amount that he sent to his kids was R350-00. In conclusion he stated that he wants to say sorry to the family of the deceased

SERIOUSNESS OF THE OFFENCES:

[5]

In respect to the seriousness of the offences this court would like to state as follows:

These crimes were committed in the early morning whilst the deceased and her four children were asleep in their home. The deceased was kidnapped and removed from her own home by force and was buried in accused 1's garden.

[6]

The State called two witness in aggravation of sentence, namely Mr Ismael Genner (the deceased's father and Naailah Genner (the deceased's sister).

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[7]

Mr Ismael Genner testified that the deceased had four children aged ten years, seven years, four years and 1 year and 8 months. On the 22nd of April around 06h30 there was a loud knock at their door and the four children of the deceased, who live 2 flats away from them were outside the door screaming and crying. His ten year-old grand-daughter was holding his one-year old grandson in her arms and his other grandson was holding the ten-year old's leg. His grandchildren narrated what had happened to the deceased and also explained that two of the grandchildren were assaulted as well. This witness saw strangulation marks as well as a blue eye on his grand-daughter. His grandson also had an injury to his hand which his grandchild stated was sustained by the men hitting him with a brick before they took his mother away. This grandson also had a bandana on his mouth which the grandson informed him was put on his mouth to prevent him from screaming.

[8]

The effect of this ordeal on his family was huge as the family had to source various psychologists to assist the grandchildren and Mr Genner's wife who were traumatised by this ordeal. In addition, the deceased's husband moved into a home with Mr Genner and his wife as the deceased's husband could no longer cope on his own or look after all four children. The youngest grandchild went to live with the deceased's sister and her husband.

[9]

Naailah Genner testified that the youngest of the deceased's children live with her now. She stated that although this child is young, he will have many questions about his true mother. She expressed in very clear terms that these children will mourn their mother and that this ordeal has been very difficult.

[10]

It is clear that Mr Ismael Genner and his whole family suffered terribly as a result of the loss of a daughter, mother and sibling.

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[11]

This country has witnessed an ever-increasing wave of violence. Kidnapping for ransom and murders are on the increase. Innocent and defenceless victims continue to fall prey to these types of...