S v Thonga

• Jurisdiction: South Africa
• Judge: Etienne du Toit AJ
• Judgment Date: 08 December 1998
• Citation: 1993 (1) SACR 365 (V)
• Hearing Date: 08 December 1998
• Counsel: MJ Mushasha for the accused at the request of the Court DB Manyuha for the State
• Court: Venda Supreme Court

Etienne du Toit AJ:

The accused and five other persons were originally charged before me with one count of murder, four counts of assault with intent to do grievous bodily harm and four counts of contravening s 1(a) H of the Witchcraft Suppression Act, 1957 (Act 3 of 1957). At the end of the merits of the matter, I acquitted the five persons charged with the accused, acquitted him of the charge of murder and other counts, but found him guilty of public violence. Public violence is a competent verdict on count 1, the charge of murder. The accused was also charged in the alternative with public violence, and I was accordingly entitled to find him guilty of public violence, as I did.

I Preferring to judge the accused on his own version, I found that during the evening of 25 March 1990 he accompanied a group of persons which can best be described as an unruly mob of mostly young people to various kraals within the Makhita residential area in the district of Dzanani. It appeared that a meeting took place before the group set off to the kraals I have mentioned, at which meeting the presence of so-called wizards and witches within the area was discussed. Those allegedly involved in the J practising of witchcraft were named by the young people

Etienne Du Toit AJ

A attending the meeting and it was apparently and clearly decided to set off to their kraals and there, through violent conduct, to remove or expel them from the area. The violent conduct envisaged included assault.

The accused told me why the group went to the house of the complainant in counts 3 and 7, namely Mrs Dorcas Tshirovha (hereinafter referred to as 'Dorcas'). He mentioned the name of Dorcas at the meeting, alleging that B she was a witch, practising witchraft and that she was responsible for the mental condition in which his grandmother, who raised him, found herself. He told me that at some stage in 1989 Dorcas went to a liquor-selling concern of his grandmother's and purchased liquor. After she paid for the liquor and handed over money to the grandmother of the accused, the grandmother became mentally ill. He therefore became convinced - and C alleged at the meeting - that Dorcas was involved in witchcraft. As happened through the country during especially the months February and March 1990, the group of youths set off to act against so-called wizards and witches. They firstly proceeded towards the house or kraal of Dorcas. At the kraal Dorcas was forced to eat the herbs allegedly used in the practising of her craft. The accused was in front of the group and also at the hut of Dorcas. He told Dorcas there that she was the one who bewitched D his grandmother and when she denied this the accused slapped her on the cheek once. A certain Ramagoro, also a member of the mob, then hit Dorcas once on the back with a cane.

From the kraal of Dorcas the group proceeded to the deceased's kraal. It is clear that the deceased was assaulted and that the injuries he sustained during the assault eventually led to his death. There was, however, no evidence connecting the accused to the death of the deceased E and, as I have already indicated, I acquitted him on the charge of murder. He nevertheless guarded the wife of the deceased, saw to it that her head was covered with a blanket, so as to prevent her from observing what was happening. When she uncovered herself, he slapped her. In the meantime, the deceased, like Dorcas, was made to eat his herbs and the accused stood next to the wife until the others left. He then also left.

F From the deceased's kraal they proceeded towards the Netsianda kraal, complainants in count 4. The accused was at the scene of the Netsianda kraal, in front of the hut, with one Peter and one Thomas. Netsianda was also made to eat herbs.

From the Netsianda kraal the group proceeded to the Thanghavhuelelo kraal, complainant in count 5, where the accused was again in front of the G group at the hut with Peter and Thomas. A block of wood was thrown at the lady of the kraal and she was hit on the head. The accused entered the main house with Peter and Thomas in order to look for herbs. After this, they went to another kraal where the accused also slapped a person, but his conduct did not form the subject matter of a count or charge before me and I would therefore ignore it for purposes of sentence.

H After the conviction, the State proved a previous conviction which is relevant against the accused and which shows that on 10 October 1989 he was convicted of assault with intent to do grievous bodily harm, an iron and a plank being involved. He was sentenced to five cuts with a light cane under s 294 of Act 51 of 1977.

Mr Mushasha, for the accused, addressed me after conviction and emphasised that the accused was born on 3 April 1973, which would have made him 17 years of age at the time of the commission of the offence. He is 19 on the day of the imposition of sentence. He is a scholar, presently I in standard 9. I was informed briefly that he was brought up by his grandfather, Petrus, and I was also informed that his parents divorced when he was still young. The father married somebody else. The accused is now, like most members of his family, attending the Dutch Reformed Church.

As far as the offence is concerned, Mr Mushasha pointed out on behalf of J the

Etienne Du Toit AJ

A accused that he was a young man at the time and that his youthfulness played an important and material role in the commission of the offence. My attention was drawn to the fact that there were older people present and that they played an influencing role as far as the accused was concerned.

It was pointed out that the Makhita area is a rural area where there is B a firm and general belief in witchcraft as well as a general fear of those involved in witchcraft and believed to be wizards or witches. The accused was motivated by the fact that, so the argument ran, his grandmother was bewitched by the complainant in counts 3 and 7. It was argued that he was over-emotional as a result of the mental condition in which his grandmother found herself and for which he blamed Dorcas. There was also C the question of mob influence. Mr Mushasha referred to the general emotional state of the nation in those eventful months following February 1990.

It was pointed out that the accused did not seriously assault anybody but applied what was called by counsel for the defence 'minimum violence'. He did not use a weapon, the argument ran, and he did not use any instrument during the assault. He was open and frank with the Court, Mr D Mushasha impressed upon me, and he also now realises that what he has done was totally wrong. He has shown contrition and it was, so Mr Mushasha said, unlikely that he will repeat similar unlawful conduct in future. He is an intelligent young man, human material worthwhile keeping out of prison, his counsel urged.

The aggravating nature of the previous conviction was conceded but it was pointed out that the accused was only 16 years at the time of the E commission of the previous assault with intent to do grievous bodily harm. I was furthermore urged not to hamper or interrupt the education of the accused by sending him to prison. Mr Mushasha requested me to consider the imposition of a fully suspended sentence.

Counsel for the State, Mr Manyuha, pointed out that in the mob violence which reigned that evening, a person was killed. He pointed to the F advanced age of the complainants and the fact that defenceless old ladies and an old man were involved. He argued that irrespective of the belief of the accused that at least one of the complainants was involved in witchcraft, even if correct, the complainants were nonetheless members of the community and were entitled to a peaceful existence. He pointed out that it is known that almost exclusively youthful people were involved in an orchestrated compaign of violence against those alleged to have been G practising witchcraft at the time.

Mr Manyuha pointed out that five strokes did not bring home any useful message to the accused. He argued that the immaturity of the accused did not really play a role in the events of that evening. The aggravating factors, so the argument ran, far outweighed the mitigating factors. A man's house is his castle, he argued. It is there to protect the occupants H thereof and the duty of a court of law is to protect the occupants of houses within the country. Referring to authorities, counsel asked for effective imprisonment to be imposed.

After hearing counsel on the question of sentence, I decided that it was desirable to obtain the views of a probation officer as well as the report of a probation officer. Considering the age of the accused and a relevant Appellate Division decision, I indicated to counsel that I preferred to be I in possession of such report in order to place me in a better position as far as the personal circumstances of the accused are concerned and vis-à-vis sentence. I indicated to counsel that I might be willing to postpone the matter of sentence to a later date, so as to enable the probation officer's report to be obtained. Both were in favour. I accordingly, through the good offices of the Attorney-General, requested the said report and postponed the matter pending that report and for sentence. The report is now before me and the evidence of the probation J officer was heard.

Etienne Du Toit AJ

A It is necessary to record that both counsel were afforded the opportunity to address me again in respect of the report and the evidence of the probation officer, as well as in the respect of sentence generally.

Firstly then, to the principles:

The principles

The trial court in a criminal matter after conviction seeks to identify an B effective sentence. This requires of the trial court true and objective consideration of all relevant factors, so as to further and...