South Africa: High Courts - Eastern Cape

You are here: SAFLII >> Databases >> South Africa: High Courts - Eastern Cape >> 2008 >> [2008] ZAECHC 151

| Noteup | LawCite

S v Grey (38/2006) [2008] ZAECHC 151 (1 September 2008)

Download original files

PDF format

RTF format

FORM A
FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES:

THE STATE

and

BONISILE GREY

[1]

Case Number: CC38/06

[2]

High Court: Bisho

DATES HEARD: 23/10/2006; 27/11/2006; 28/11/2006; 29/11/2006; 29/11/2006; 01/12/2006; 20/02/2007; 08/05/2007; 16/05/2007; 17/05/2007; 10/09/2007; 25/09/2007; 26/09/2007; 27/09/2007; 29/10/2007; 19/11/2007; 11/12/2007; 29/01/2008; 30/01/2008; 31/01/2008; 01/02/2008; 04/02/2008; 11/03/2008; 23/06/2008; 11/08/2008; 25/08/2008 & 01/09/2008.

JUDGMENT DELIVERED: 19 November 2007
SENTENCED: 1 SEPTEMBER 2008

JUDGE(S): EBRAHIM J:

LEGAL REPRESENTATIVES –

Appearances:

[1]

for the State: Mr Mbusi

[2]

for the Accused: Mr Sandi

Instructing attorneys:

[1]

Accused: Legal Aid Board (King William’s Town

Mr Ndunyana

CASE INFORMATION -

(a)

Nature of proceedings : Murder

(b)

Topic:

(c)

Key Words:

IN THE HIGH COURT OF SOUTH AFRICA
(BISHO)

CASE NO: 38/2006

THE STATE

versus

BONISILE GREY Accused

SENTENCE

EBRAHIM J:

Introduction

[3]

The accused has been convicted of the crime of murder and the Court must now impose sentence.

[4]

Before I impose sentence let me record, once again, that on the basis of the testimony in mitigation of sentence of Mrs Luyanda Mapekula, a clinical psychologist, the Court directed in terms of s 78 of the Criminal Procedure Act, 51 of 1977 that a panel of and a clinical psychologist enquire into whether or not the accused was criminally responsible for the crime he committed. The unanimous opinion of the panel was that ‘the accused was able to appreciate the wrongfulness of the act in question and able to act in accordance with such appreciation of wrongfulness’. In a supplementary report the three psychiatrists on the panel stated that the ability of the accused to act as aforesaid had not been diminished by reason of mental illness or defect. As Mr Iain Reid, the clinical psychologist, was absent on leave his opinion on this aspect was not available. The findings of the panel were accepted by the accused and the state without dispute. In the circumstances, since there was no basis for the Court to reconsider its finding that the accused was guilty of the offence of murder, the conviction stood.

[5]

In determining an appropriate sentence, the Court takes account of the personal circumstances of the accused, the nature of the crime, and the interests of society. In appropriate circumstances the Court will exercise a measure of mercy.

Personal circumstances of the accused

[6]

Mr Grey, you elected not to testify in mitigation of sentence, as was your right, and presented the evidence of Mrs Mapekula. Your personal circumstances are the following: You are now 51 years old. You are the father of two children aged 20 years and 16 years respectively, born out of an 18 years long relationship with Ms Boniswa Qaga. The relationship ended in May 2002. After matriculating from school you studied further and obtained diplomas in personnel and production management, administration and religion and attended a leadership course. You worked in various capacities over the years until your appointment as Resorts Superintendent by the Buffalo City Municipality, which terminated when you were arrested for the commission of this crime in July 2005. You have no previous convictions.

The nature of the crime

[7]

It is selfevident that murder is the most serious of crimes. Its consequences are devastating and farreaching. A person’s right to life is one of the fundamental rights entrenched in the Bill of Rights in our Constitution. Despite taking the life of another, you continue to enjoy this right. Due to your actions the lives of the deceased’s immediate family, relatives and friends and Ms Qaga, who enjoyed a close relationship with him, have been adversely affected. Ms Qaga and others who knew the deceased saw you attack and brutally stab him to death in front of a crowd of mourners, numbering many hundreds if not a few thousand. They recounted in their testimony their shock and horror at what they had witnessed.

[8]

Ms Thandeka Mgoduso, the deceased’s sister, testified that after the tragic death of their parents in the nineties the deceased assumed their parenting responsibilities and cared for the immediate and extended family. The deceased was a beacon of hope to them and his death traumatically affected everyone as he was greatly loved. The deceased had also been involved in community projects in the poor rural area of Ntlaza in the Eastern Cape. His death has left those dependent on him without support.

[9]

Mr Sandi contended on your behalf that the murder was a crime of passion. I am unable to accept this characterisation of the crime since your defence was that you stabbed the deceased when you had to defend yourself against an attack he initiated. The judgment of this Court clearly indicates that the evidence established that you had not acted in selfdefence.

The interests of society

[10]

I turn to consider the interests of society. The use of violence to resolve disputes between family members or individuals who once enjoyed a relationship is an occurrence that is far too frequent in our society. Far too frequently there are reports of crimes of this nature in the news media. In most cases the perpetrators are men. In your case it is difficult to understand why you had to resort to killing the person with whom your previous partner had formed a relationship. Part of the answer appears to lie in the belief, as Mr Sandi said, that Ms Qaga was your lifelong partner. Men have no right to regard women as their property nor may they conduct themselves as if they alone may decide if the relationship should end. Women are the equal of men and have the right to be treated with dignity. The Constitution guarantees these rights to every individual with the right to freedom of association.

[11]

Any perception that perpetrators of crime have greater rights than victims under the Constitution needs to be dispelled. Our Constitution decrees that all are equal before the law. While the Court is enjoined to uphold the constitutional rights of accused persons it must also accord proper recognition to the rights of victims. In considering the interests of society, a court strives to protect lawabiding members of society from violence against their person and property. It should be noted that punishment is determined in accordance with established legal principles and with due regard for the particular circumstances of each case.

The purposes of sentence

[12]

The purposes of sentence are deterrent, preventative, reformative and retributive. Sentences should thus serve to deter others from committing similar offences and crime in general. In respect of retribution, a court takes account of society’s moral outrage at the nature of particular crimes and the frequency thereof. An accused will also be provided with the opportunity for rehabilitation, wherever possible. However, this must be balanced against the necessity of a long term of imprisonment because of the seriousness of the crime. If sentences for extremely serious offences are unjustifiably lenient public confidence in the justice system may be undermined.

Criminal Law Amendment Act 105 of 1997

[13]

Criminal Law Amendment Act 105 of 1997 (‘CLA Act’) prescribes specific periods of imprisonment for particular crimes. Thus if the murder is premeditated the prescribed sentence is imprisonment for life. A court may, however, depart from the prescribed sentence if substantial and compelling circumstances justify the imposition of a lesser sentence. At the same time the Court will also take account of any aggravating factors.

[14]

Mr Sandi referred to various cases in support of his submission that a lesser sentence than life imprisonment be imposed. He contended that certain factors taken cumulatively constituted substantial and compelling circumstances. These were: (i) your personal circumstances; (ii) you were under extreme stress due to the emotional frustration you experienced when your relationship with Ms Qaga ended; (iii) you had no history of violence and acted out of character; (iv) there had been provocation; (v) there was no likelihood of you committing any further crimes; and (vi) you were not totally without remorse despite any explicit expression thereof by you.

[15]

Mr Sandi urged the Court not to ignore the history of the crime and to look at all the circumstances to ascertain why the murder had taken place. The Court, he said, had to consider your diminished moral blameworthiness and should not punish you for failing to express remorse but show mercy. He has contended, rather contentiously, that the Court should neutralise the harsh effects of its finding that the murder was premeditated by imposing a lesser sentence than the prescribed one of life imprisonment.

[16]

On behalf of the state, Mr Mbusi submitted that the only mitigating factor was that you were a first offender. The relationship you had with Ms Qaga could not be regarded as a mitigating factor as the two of you had separated. Ms Qaga had the right to carry on with her life and the Court should send a clear message that men were not superior to women. The deceased, as described by Ms Mgoduso, had been of great value to others. Mr Mbusi said it was a gruesome and callous murder which you committed without provocation. The aggravating factors outweighed the only one of a mitigating nature. You also showed no remorse. He contended that there were no substantial and compelling circumstances and life imprisonment should be imposed.

Are there substantial and compelling circumstances?

[17]

I turn to the issue of substantial and compelling circumstances. Mr Grey it is unfortunate that you did not take the Court into your confidence and disclose what precisely precipitated your decision to kill the deceased. Irrespective of the nature of the problems that Ms Qaga’s termination of the relationship created, there were nonviolent solutions available to you. In the interview conducted by Mrs Mapekula you persisted with the claim that you stabbed the deceased in selfdefence. She has gone to great lengths to paint a picture of you as a person who was in a state of severe depression when you stabbed the deceased. As you now know, the panel of three psychiatrists and a clinical psychologist did not share this opinion.

[18]

It appears from the report and testimony of Mrs Mapekula that you could not reconcile yourself to the fact that your relationship with Ms Qaga had ended and that she had become involved with the deceased. According to Mrs Mapekula you did not exhibit any ‘spontaneous expression of remorse about the deed or death of the deceased’. I am left to infer that you do not accept culpability for the death of the deceased. The fact that you are not remorseful must be weighed up with all the other relevant factors.

[19]

Mr Mbusi’s submission that there are aggravating factors is correct. You attacked the deceased without forewarning in front of a huge crowd of mourners. You chased him, wielding the knife, and stabbed him a number of times after he fell to the ground. Such conduct calls for severe punishment. Notwithstanding this, there are mitigating factors. These are:

(d)

Your personal circumstances. You are 51 years of age and the father of two children and, until your arrest, you were in fixed employment;

(e)

You were not convicted of any other criminal activity except this murder, which you committed just two weeks prior to becoming 48 years old;

(f)

It appears that the fact that Ms Qaga ended her relationship with you and then formed a close relationship with the deceased angered you to such an extent that you decided to kill the deceased.

[20]

In my view, these are substantial and compelling circumstances that cumulatively justify a lesser sentence. I am further of the view that to impose life imprisonment would be disproportionate to the crime, the needs of society and to you, the accused, and thus an injustice. I am also exercising a measure of mercy even though you did not show any to the deceased.

Sentence

[21]

In the result, after weighing up all the relevant factors, I consider the following sentence appropriate. You are hereby sentenced to imprisonment for eighteen (18) years.

___________________

JUDGE Y EBRAHIM 1 SEPTEMBER 2008

^GREY.SEN