South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: SS135/99

DATE:2000.09.14

In the matter between

THE STATE

and

MBELE, BONGINKOSI FRANK.................................................................................... Accused

SENTENCE

WILLIS J: It is well established in these courts and reflects the accumulated wisdom of the generations that sentence should fit the criminal as well as the crime, be fair to the state and to the accused and be blended with a measure of mercy. It must also reflect the interests of society. The accused was at the time of the commission of these offenses 17-years of age. He was a scholar attending school. He lived with his grandparents, his mother was employed as a domestic worker in Bramley and lived there.

The parties agreed that in the circumstances of this particular is set in motion from which there is no easy escape and for which there are no easy solutions. Some but certainly not all of a solution lies in the courts having regard to the function of general deterrence. In other words lengthy prison sentences are part of the solution, but we delude ourselves if we believe that this alone will solve our problems with crime. We need jobs, we need more efficient, dedicated and competent police men and women, prosecutors, magistrates and judges. Above all we need to have a culture of non-violence.

It is beyond my wisdom to know how we can create a culture of non-violence. Perhaps the great institutions of our society such as our courts can make a contribution by reflecting in their judgments compassion for our fellow men and women. It has to be accepted but not only do we live in a violent society but also that our society has for the past few decades undergone great turmoil, suffering and distress. These were the decades of the accused's life. While each of us is responsible for his or her acts, it has to be accepted that each of us is the product of his or her times and circumstances.

I spoke earlier of a vicious cycle. There are others that move in parallel with the one I have mentioned earlier. A harsh and vicious society which experience great social upheaval, inevitably fashioned the accused and all of us share some blame for the hardness of the accused's heart which resulted in his dreadful crimes of murder and housebreaking with the intent to commit robbery.

In times gone by a person who broke into the house of another and murdered that person, would almost certainly have received the death sentence. The accused can consider himself fortunate that these crimes were committed before the coming into operation of the Criminal Law Amendment Act which prescribe minimum sentences. I have seriously considered giving the accused a sentence of life imprisonment. Nevertheless there are two factors which in my view operate to avoid so severe a sentence. The one is the accused's youthfulness at the time. The other is that almost certainly he was part of a group of persons that acted in concert to break into the house and rob this elderly woman. The precise nature of the accused's role in the commission of these crimes is not clear.

The accused is in this respect entitled to the benefit of the doubt. Mr Habendi, counsel for the accused asked that I have regard to the cumulative affect of the sentences that I impose and that I should in the exercise of mercy order that they run concurrently. I am satisfied that the close linkage between the murder and the housebreaking charges justifies in this particular case the ordering that the sentences should run concurrently.

Will the accused please stand for sentence. Count 1, the murder charge, you are sentenced to 20 years' imprisonment, count 2 the charge of housebreaking, you are sentenced to 10 years' imprisonment. It is ordered that the sentence on count 2 is to run concurrently with the sentence on count 1, in other words the effective sentence is 20 years.

2000.09.14

ON BEHALF OF THE STATE:ADV NKOANA

ON BEHALF OF THE ACCUSED:ADV HABEDI