S v Shangase

• Jurisdiction: South Africa
• Judge: Ntlama AJ
• Judgment Date: 12 March 2019
• Docket Number: CCD33/16
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 29 September 2017
• Citation: 2019 JDR 0743 (KZD)

Ntlama AJ

This Court convicted the three accused for the crime of robbery with aggravating circumstances and the crime of murder which were committed by a group of persons in the furtherance of their common purpose as arraigned. As already contextualised in the main judgment the offences carry the prescribed minimum sentences as envisaged in section 51 of the Criminal Law Amendment Act 105 of 1997 read with part 2 of schedule 2 of the said Act.

Let me repeat myself as I have said in the main judgment that I am satisfied that the accused understand the impact of the implication of this Act.

On conviction of the accused the defence applied for leave to get the probation officer's report for accused 1 and 2 whilst accused 3 supplemented his application for the social workers report and the extension of his bail. The State did not oppose these applications. However, having considered the request in respect of the probationer's reports for accused 1, 2 and 3 I granted these applications. I further granted the application for the social worker's report in respect of accused 3 thus notwithstanding the fact that the State did not oppose the extension of bail for accused 3 I refused to grant the application for its extension because he was convicted of serious crimes which fall

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within the prescripts of the Minimum Sentences Act.

Sentencing is one of the fundamental aspects of the criminal justice system in the disposal of cases before the Courts. Of particular importance is the reasonable exercise of the discretion that is vested in the Courts to determine the nature and type of the sentence to be imposed in respect of the offending behaviour. The discretion is guided by its most fundamental principle of their independence which is characterised by the personal and institutional independence as envisaged in section 165 of the 1996 Constitution. It is consolidated by the prescription of minimum sentences that may be imposed by the Courts as entrenched in the Minimum Sentences Act.

The prescription is a far cry from the experiences of South Africa's history on the imposition of sentences which was characterised by unfair, humiliating and degrading punitive measures, especially against the South African Blacks. The importance of the Minimum Sentences Act was therefore given meaning by MAXWELL J in S v Moola as:

"The Judge held that the sentencing Court is required to impose now the sentences prescribed for these particular offences which sentences are the benchmark or standards against which appropriate and just punishment is to be measured."

The Court further qualified the essence of the application of the minimum sentence by quoting with approval S v Abrahams and

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emphasised that the Court should, I quote;

"Not merely pay lip service to the intention of the legislature that prescribed periods of imprisonments which have to be taken to ordinarily appropriate when crimes of the specified kind are committed, as the provisions of the Act create a legislative standard that weighs upon the exercise of the sentencing Court's discretion."

In giving effect to the prescribed sentences the Courts have constantly produced judisprudence regarding the way in which such obligation has to be undertaken. It is trite law that each case must be considered according to its own merits thus in this consideration there are distinct factors that have to be taken into account in ensuring that the Court reaches a just outcome on the imposition of the sentence. It has long been settled that the sentencing Court must individualise the sentence in ensuring the fitting of the crime to the offending behaviour. Secondly, equal to consider the impact of the crime itself and lastly to take into account the interests of the public which cannot be ignored in the quest to eliminate the scourge of crime. It is also the case with the other two branches of the state; the executive and the legislature that have sufficient interests on the imposition of the sentence. The executive engages in the implementation phase of the laws, whilst the legislature carries the law making function. This also does not entail interference with the way in which the Courts may deliver the sentences.

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In the interest of the purpose of sentence and the stakes involved therein sentencing requires a high level of composure in order to reach a just outcome. In essence at the risk of reproducing what had long been said as the precedent regarding the imposition of sentence in the light of the afore factors it is therefore worthwhile to re-emphasise that effective punishment must fit the crime, the offender and the interest of the society, with due regard to the interest of the executive and the legislature.

These factors fit within the holistic approach of the consideration of the evidence in its totality. They endorse the direct linkage of the evidence to the accused criminal and blameworthy conduct in determining the effectiveness of the sentence to be imposed. Simply put, the substantive analysis of these factors individually or collectively is of utmost importance when the crime committed attracts the severest form of punishment.

With this background considered, it is judicious that I deal with the personal circumstances of each of the accused. Since the defence requested the obtainment of probation officer's report and the social worker's report, the two reports with reference to accused 1 highlighted that he is an adult male of 24 years who left school without completing his secondary education in Standard 9. He grew up under the guidance of his mother without his father who never supported him and subsequently died in the year 2015. He is also himself the father of two children with one almost three years and the other one four years old.

Although he was separated and lost contact from the mother of the four

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-year old child he is still in a relationship with the mother of the second child who is unemployed and does not know whether the child receives the child support grant. At the time of his arrest he was also not working except for odd jobs as a DJ. Prior to his arrest he was also supportive of his child and was characterised by the mother of child two that he was a quiet person who loved to stay at home. He was also supportive to his mother as he used to bring half of his salary or groceries to his family. He is also not in good health as he was diagnosed with tuberculosis which is TB on 10 August 2017.

The two reports further refer to accused 2 who is an adult male of 24 years. He failed his matric Standard 10 in 2012. His mother has since passed on and he does not know his father and he is living with his maternal grandparents. He does not have siblings but he is supportive to his own child, a two-year old daughter that receives the child support grant. He is also still involved with the mother of the child. The maternal aunt who is running the tuck shop as the grandparents are living on old age pension maintains the household. He is described as a humble person and gives credit unto himself as a respectful person who obeys the maternal grandmother's rules.

Accused 3 is also an adult male of 23 years who left school doing matric (Standard 10 / Grade 12) in the year 2015 upon his arrest in respect of the...