S v Muronga

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: DF Small AJ
• Judgment Date: 29 October 2021
• Docket Number: CC 5/2020
• Hearing Date: 04 October 2021
• Court: Northern Local Division, Oshakati
• Citation: 2021 JDR 3018 (NmO)

Small AJ:

Introduction:

[1]

The accused, after being charged with Murder was convicted of the competent verdict of Culpable Homicide.

[2]

The Court is indebted to counsel for the State Ms Khama and Mr Tjiveze for the defence for their helpful written submissions to assist the Court in the difficult task of sentencing the accused with an appropriate sentence considering the circumstances of the case.

[3]

The sentences proposed by counsel vary from a wholly suspended sentence of imprisonment to a substantial period of direct imprisonment partially suspended for five years.

[4]

S v Nanyemba, [1] I summarized some of the applicable principles to sentence as follows:

'In sentencing, courts should consider the distinguished triad factors of sentencing, the crime, the offender, and society's interests. [2] The court must consider the personality of

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the offender, his age, and personal circumstances, together with the crime and the interests of society. [3] Then there is the element of mercy or compassion or basic humanity. The latter has nothing in common with overemotional sympathy for the accused. Recognising that fair punishment may have to be robust, mercy is a balanced and humane quality of thought that softens one's approach when considering the fundamental factors of letting the punishment fit the criminal and the crime and being fair to society. [4]

[5]

Ms Khama in this respect of the mercy element referred the Court to S v Strauss [5] where O'Linn J, as the then was, said: 'The requirement of mercy does not mean that the courts must be too weak or must hesitate to impose a heavy sentence where it is justified by the circumstances.' I agree with this principle, but I believe it is vital to point out that the aforesaid quoted passage appears just below another part of the judgement [6] where the learned Judge quoted with approval from S v Harrison [7] where Holmes JA stated: 'Justice must be done; but mercy, not a sledge-hammer, is its concomitant.'

[6]

Sentencing requires a balancing exercise between the competing factors before a Court can decide on an appropriate punishment. It is, however, settled that in this process, it may sometimes be unavoidable to emphasise one factor at the expense of the others. [8]

[7]

The accused testified in mitigation. He is a 25-year-old male who, at the time of the incident, was 21 years old. He is a first offender. He presently is a student at

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COSDEC in Rundu, where he studies Bricklaying and Plastering while residing with his uncle Bernhardt Ndumba. His uncle also testified in mitigation. The accused is not married and has no children.

[8]

He had spent three years in custody before he was released. He was not in custody when he appeared before this Court for the first time. The Court however withdrew his bail upon convicting him. When asked whether he had remorse for his actions, he repeatedly said he felt terrible as he lost a relative. I will return to this aspect later in the judgement.

[9]

The family has reimbursed the deceased's mother following the customary law. In this regard, the accused had contributed, although the bulk of the compensation came from the accused's family. The uncle indicated that they might afford to pay a fine of N$10 000.00 on behalf of the accused. This offer is only applicable if the Court considered a fine appropriate in this case's circumstances. I will also return in this aspect a bit later in the judgement.

[10]

The mother of the deceased Salome Kambore Shihako also gave evidence in aggravation. She has not found closure in respect of the death of her young child and has not forgiven the accused. She was clearly emotional while giving evidence. These feelings are understandable, and the Court sympathizes with that. In that regard, she is part of society and part of the community that looks to the Courts to impose sentences that balance the scales of justice to some extent. However, inordinately severe sentences requested by the victims of crime cannot result in a Court's abdication of its duty and imposing an inappropriate sentence.

[11]

The accused spend a substantial period in custody prior to his conviction. I consider it apposite to refer once again S v Nanyemba, [9] where I stated:

'Before sentencing, a court must consider any substantial time spent in custody awaiting trial. I do not believe that it is a mitigating factor per se that lessens the severity of the criminal act or the accused's culpability. However, a court tasked with imposing an appropriate sentence cannot ignore the time the accused spent in custody pending his conviction and sentence if such period is substantial. A court must accord sufficient weight to such time spent in custody and should consider it together with other relevant factors to

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arrive at an appropriate sentence. Taking it into account does not mean simply deducting the time spent in custody from the intended sentence.' [10]

[12]

A criminal trial takes time to finalize. The incident happened on 4 April 2017, and the trial commenced in 2021 only. The trial was completed in the High Court within four months after it began. In most of these severe cases, a lapse in time between the commission of a...