S v Tai-Tai and others (Sentence)
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Jolwana J |
| Judgment Date | 30 August 2023 |
| Citation | 2023 JDR 3237 (ECM) |
| Hearing Date | 28 August 2023 |
| Docket Number | CC21/2020 |
| Court | Eastern Cape Division |
Jolwana J:
The accused were charged with one count of conspiracy to commit the murder of the deceased in count 3, Mr Nyakambi Monoana in contravention of section 29 of Act 9 of 1983, one count of arson in contravention of section 125 of Act 9 of 1983 which was which was in connection with the burning of Mr Nyakambi Monoana’s homestead and three counts of murder in contravention of section 84 of Act 9 of 1983 The murder charges were for the death of the deceased in count 3, Mr Nyakambi Monoana, the
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death of the deceased in count 4, Ms Kekeletso Catherine Senoamadi and the death of the deceased in count 5, Siyabonga Bontjie.
With regard to the murder charges the State invoked the provisions of section 51 (1) of the Criminal Law Amendment Act 105 of 1997. This was on the basis that the commission of these murders was premeditated and the three accused acted in furtherance of a common purpose. The accused persons were convicted in respect of arson and the murder charges. They must now be given appropriate sentences.
Before the accused were asked to plead to the charges, they were each asked to confirm if they understood all the charges. All three of them confirmed that they understood each and everyone of the charges. The court further explained to them the implications of the State’s invocation of section 51 (1) of the Criminal Law Amendment Act 105 of 1997 (the Minimum Sentences Act) in respect of the murder charges. On their confirmation that they understood that they may be sentenced to life imprisonment in the event of a conviction in respect of counts 3, 4 and 5, the murder charges, they were then asked to plead. Their legal representatives also confirmed that the provisions of section 51 (1) of the Minimum Sentences Act were explained to the accused. All the accused pleaded not guilty to all the charges preferred against them.
Section 51 (1) of the Minimum Sentences Act reads:
“Notwithstanding any other law, but subject to subsections (3) and (6) a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.”
The relevant parts of Part 1 of Schedule 2 read:
“Murder, when –
it was planned or pre-meditated,
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. . .
the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy;”
On premeditation and common purpose, this Court made the following findings in convicting the accused persons [1] :
Having considered with great care, all the evidence of the State witnesses and the evidence of each one of the accused persons, it is clear to me that the three accused persons were not at the wrong place at the wrong time. The evidence considered as a whole point to carefully planned and executed crimes which were designed to procure the outcome that they did, the killing of the deceased and the destruction of their home. On the evidence, it is accused no.1 and 3 who set the Nyakambi homestead on fire at the behest of accused no.2 who masterminded the whole operation in what, if it was not criminal acts, would be said to be commendable skill to evade detection. The meeting at her place was not to discuss a dagga deal. It was evidently to plan and execute the crimes that were committed with the willing assistance and participation of accused no.1 and 3 who ordinarily had no axe to grind against the deceased persons.
The fact that accused no.2 never set her feet at the Nyakambi homestead at the time it was set on fire is neither here nor there. Accused no.1 and 3 acted on her behalf and executed a plan they had all hatched together. They both had no reason of their own to kill the deceased persons. The doctrine of common purpose under which they were charged makes all of them equally liable for all the crimes that were committed that night. . . .”
The court, having found that the murders were premeditated and that the accused acted in furtherance or execution of a common purpose, convicted them in respect of arson and the three murder charges. Therefore, section 51 (1) of the Minimum Sentences Act which the State had involved when charging the accused is applicable in the consideration of an appropriate sentence. Section 51 (1) is however subject to section 51 (3) of the Minimum Sentences Act. While section 51 (1) provides for the
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imposition of the prescribed minimum sentences, section 51 (3) opens up a possibility for the court to consider each case individually and apply its discretion in considering whether in a particular case the particular prescribed minimum sentence would be appropriate in the circumstances of the case as a whole and in particular, the personal circumstances of the person so convicted.
Section 51 (3) of the Minimum Sentences Act reads as follows:
“If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence.”
Before I consider the evidence of the accused who testified in mitigation of sentence and the submissions that were made on behalf of all the accused I consider it instructive to bring to the fore, in brief, the nature of the crimes involved in this matter. At or about midnight on 6 November 2019 the Nyakambi homestead was set on fire and it was not known what or how the fire started. All the people who were there that night were scorched to death. Those people were the three deceased persons in this case. Dr Jwaqa, the forensic pathologist who examined what remained of the deceased after the fire described two of the deceased persons, Mr Nyakambi Monoana and Ms Kekeletso Catherine Senoamadi as having been burnt beyond recognition with their limbs burnt to amputation. The third deceased person, Siyabonga Bontjie, a 13 year old boy was also found to have been completely burnt beyond recognition.
The accused persons were charged in connection with the incident and they pleaded not guilty during their trial. After a very lengthy trial, the evidence established that the fire was not accidental. It was in fact a deliberate and well-planned arson
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attack on the three unsuspecting people who were known, at least by accused no.2, to be living in that homestead as their home. She had conspired and planned together with accused no.1 and 3 to set that homestead on fire. As part of a plan to commit the offences accused no.2 hired a cab in which accused no.1 and 3 loaded 10 litres of petrol...
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