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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NO: CC07/2013

Date heard: 26 August 2014

Date delivered: 27 August 2014

In the matter between

The State

And

THEMBANI BUSAKWE                                                                                               Accused

SENTENCE

GOOSEN, J.

[1] The accused was arraigned for trial together with three other persons. At the commencement of proceedings the prosecution withdrew the charges against three of the accused persons and proceeded only against the accused. He was been convicted, on a plea of guilty of the murder of M. B.; robbery with aggravating circumstances; unlawful possession of a firearm in contravention of s3 of Act 60 of 2000 and unlawful possession of ammunition in contravention of 90 of the same act. The prosecution accepted the plea of guilty, as also the factual basis upon which it was tendered as set out in a written statement furnished in terms of section 112 (2) of the Criminal Procedure Act, 51 of 1977.

[2] In that statement the accused said that on 25 November 2011 he had gone to Motherwell to fetch groceries from his father, who lives in Motherwell. He had in his possession a .32 special Astra Revolver which an erstwhile co-accused had given to him to keep. After he had obtained the groceries he sat and drank at a tavern in Motherwell with the three erstwhile co-accused. He remained at the tavern for about two hours during which time he drank between one and two litres of red wine and about three bottles of beer. At some point in the evening Vuyo Mbanga (who was the erstwhile accused 4) said that he had a buyer for a motor vehicle and that they should steal a motor vehicle to sell to this buyer. The four of them then left the tavern to find such a motor vehicle to steal. A short while later they came across a Toyota Corolla in which the deceased was sitting in the driver seat. The accused approached the vehicle, together with one other person whilst the other two waited a short distance away. The accused smashed the window on the driver’s side of the motor vehicle and instructed the deceased to get out of the motor vehicle. When the deceased reached down to undo the seatbelt he apparently thought that the deceased was trying to draw firearm and so the accused immediately opened fire on him. He then pulled the deceased out of the car and dumped him outside of the vehicle. He and the other three persons in got into the vehicle and drove away.

[3] The deceased died on the scene as a result of the gunshot wounds. The post mortem report, which was admitted by the accused, indicates that the deceased suffered bullet wounds to his face and chest.

[4] The accused was apparently arrested later that same night and on 27 November he made a warning statement in which he admitted his involvement. He pointed out of the scene to the police on the same day. The s112 statement contains these admissions as well as admissions in respect of the chain of evidence relating to the death of the deceased. The plea also contains a tender by the accused to testify or make a statement as may be required by the prosecution in relation to the events of that night.

[5] As indicated the accused was convicted on the strength of his plea. He testified in mitigation of sentence. Initially, in his evidence, he did not expand upon the alleged role that alcohol may have played in the commission of these offences. Following concerns addressed to defence counsel in this regard by the court, the accused was recalled to give evidence and to explain the role, if any, that alcohol may have played in the commission of the offences.

[6] In this evidence he sought, perhaps not surprisingly, to suggest that as a result of the consumption of alcohol on that evening he was “very drunk” and that he was “staggering”. He even sought to suggest that he has no clear recall of certain of the events of that night and that he was told what had occurred. In cross-examination the prosecution was able to establish, in my view unequivocally, that this evidence constituted an exaggeration. So for example, he conceded in cross-examination that he had driven the vehicle from Motherwell to New Brighton after they had committed the robbery; that he and one of the other perpetrators had first walked past the vehicle in order to see how many occupants there were in the vehicle before they executed the robbery and, furthermore, that he recalled all of these aspects.

[7] Having said that, it must be accepted, based on the factual averments made by the accused in the s112 statement, which facts were accepted by the prosecution, that the accused’s consumption of alcohol played a role in impairing his judgment on the night in question. This court is accordingly bound by that concession, and must therefore treat the consumption of alcohol as an established mitigating factor reducing the moral blame worthiness of the accused (see S v Cele 1990 (1) SACR 251 (A) at 254h-j).

[8] The offences for which the accused has been convicted are very serious. The murder count carries with it, in terms of the provisions of s 51(1) of Act 105 of 1997, a sentence of life imprisonment. The charge of robbery with aggravating circumstances also carries with it a minimum prescribed sentence of 15 years imprisonment. In both of these instances the imposition of the minimum sentence may only be departed from if the court is satisfied that there are substantial and compelling circumstances which warrant the imposition of a sentence other than that prescribed.

[9] The approach to the determination of what constitutes substantial and compelling circumstances has been dealt with in a great many cases, and need not be repeated here (cf. S v Malgas 2001 (1) SACR 469 (SCA); S v Vilakazi 2009 (1) SACR 552 (SCA) at 560g-h and 561b, S v Fatyi  2001(1) SACR 485 (SCA) at 488f-g). That approach requires that all of the factors ordinarily regarded as mitigating to be taken into account in considering whether there are substantial and compelling circumstances present. It also requires that the court engage in a careful balancing exercise in which the nature and seriousness of the offence is considered, its effect upon the victims of crime, the interests of the society and the interests of the accused. All of these factors are to be considered in the light of the objects of punishment and a determination must be made as to whether the prescribed sentence is one that is proportionate to the crime and the criminal. In the event that it is found that it is not proportionate then that factor alone constitutes substantial and compelling circumstances which warrant a departure from the imposition of the prescribed sentence.

[10] The circumstances set out in the plea explanation, involving the consumption of alcohol at a tavern and the hatching of a criminal plan and its subsequent execution are circumstances which occur all too often in our society. Matters come before these courts on an almost daily basis where that sequence of events is typical. A group of friends drink together and then fuelled by the alcohol commit of some terrible offence which has devastating consequences on an innocent person and his or her family.

[11] The deceased’s wife testified about effect that the murder of the deceased has had upon her family and the deceased’s two young children. They are deeply traumatised. His daughter becomes tearful when she sees a father in the company of his children because she thereby is reminded of the pain of her loss. The deceased in his lifetime was employed and was providing for his family. They were dependent upon him financially. His daughter is asthmatic and she was the beneficiary of his medical aid. Now she no longer has that benefit and her health and well-being is compromised as a result. The deceased’s widow is not able to maintain the children or the family in the same manner as the deceased in his lifetime. The family is now economically vulnerable and in a society where economic vulnerability and limited access to resources can seriously undermine the capacity to advance in the world, it is not difficult to see how a wanton act of violence can perpetuate suffering over many, many years.

[12] The accused’s explanation for how he came to commit these offences is merely that his judgment was impaired by the intake of alcohol. I accept that it must have been impaired but I am nevertheless struck by how seemingly easy it is to move from a position of an ostensibly law-abiding citizen to a criminal with no regard for the consequences of one’s actions merely because you get drunk in a tavern with some friends. One has to wonder about the moral fibre of the people involved.

[13] Despite my misgivings about the proper explanation for how this conduct occurs, I do accept that there are mitigating factors present which weigh in favour of the accused. Those are that he pleaded guilty, that he admitted his involvement and was cooperative when arrested by the police. It emerged in the evidence that he had supplied the identities of his co-perpetrators and their addresses and assisted the police in securing their arrest. He also has tendered to provide such evidence as the prosecution may require from him in this matter. He not only admitted a previous conviction for driving a motor vehicle without a licence, which the state had proved, but also admitted a further previous conviction relating to drunken driving which the prosecution had not proved.

[14] The accused is [….] years old and has three children. The eldest is [….] years of age and lives his biological mother. The younger children are twins born in March [….]. At the time of his arrest they were living in Port Elizabeth and he was trying to support them when he obtained odd-jobs. They are now living with his mother in Peddie.

[15] The question I must ask myself is whether all of these mitigating factors weighed together constitute substantial and compelling circumstances which would warrant a departure from the prescribed minimum sentences. I’m required also to consider whether that sentence would, having regard to all of the circumstances present be disproportionate.

[16] Life imprisonment is generally speaking a sentence which is imposed in the most serious cases where the accused poses a real danger to the society and where there is little or no prospect of rehabilitation present. Those are not circumstances which apply in this instance, and although one is filled with a deep sense of revulsion when considering the feral and predatory nature of the crime and its devastating consequences I am not persuaded that life imprisonment would be a proportionate sentence for the crime of murder in this instance. For that reason I consider that I am obliged to impose a sentence other than life imprisonment.

[17] I shall accept that the set of personal circumstances as presented by the accused and in particular the consumption of alcohol constitute important mitigating factors. I shall treat him as effectively a first offender, given that the previous convictions relate to traffic offences. Thus, whilst I consider myself at large to impose a sentence other than the prescribed minimum sentence for the count of robbery, I do not consider that a sentence of 15 years for the robbery is in any way disproportionate in the circumstances of this case, or that it would bring about an injustice if such a sentence was imposed. On the contrary I consider it to be an appropriate sentence.

[18] It was argued that I should, in imposing an appropriate sentence, order that the periods of imprisonment imposed run concurrently on the basis that the offences were all committed as part of a single transaction. In the light of the individual sentences which I propose to impose and having regard to the circumstances in which the offences were committed, I do consider it appropriate to order that the sentence run concurrently so that the cumulative effect of the sentence is appropriately ameliorated.

[19] In the result the accused is sentenced as follows:

On the count of murder – 22 years imprisonment;

On the count of robbery with aggravating circumstances, - 15 years imprisonment;

On the count of unlawful possession of a firearm terms of s 3 of Act 60 of 2000 – 3 years imprisonment;

On the count of unlawful possession of ammunition in contravention of s 90 of Act 60 of 2000 – 18 months imprisonment;

It is ordered that the sentences imposed on each of the counts shall run concurrently.

_______________________

G. GOOSEN

JUDGE OF THE HIGH COURT

 

Appearances            Adv. Loots

                                    Director of Public Prosecution

 

                                    Adv. Crompton

                                    For the Accused

 

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