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IN THE HIGH COURT OF SOUTH AFRICA

(CIRCUIT LOCAL DIVISION FOR THE DELMAS CIRCUIT COURT)

Case No. SH90/2005

Registrar Ref. No. CC 101/08

Date:13/05/2008

THE STATE

versus

MATHEWS MWELASE..............................................................................Accused

SENTENCE

[1] The accused, Mathews Mwelase, following on his pleas of guilty was convicted by the Brakpan regional court of murder (count 1), unlawful possession of a firearm (count 2), and of unlawful possession of ammunition (count 3).

[2] The proceedings were then stopped and the accused committed for sentence by a High Court under s. 52(1)(a) of the Criminal Law Amendment Act 105 of 1997 (“the Act”). It is accepted that, insofar as the convictions on counts 2 and 3 are concerned, the regional magistrate also acted under s. 52A(1)(a) of the Act, even though he did not specifically refer to the latter section.

[3] Adv Cronjé SC represented the state and Adv van der Westhuizen represented the accused in the proceedings before me.

[4] I am satisfied that the accused is guilty of the offences which he has been convicted of in the Brakpan regional court and in respect of which he has been committed for sentence in these proceedings before me. Both counsel were also ad idem that the accused has correctly been convicted.

[5] I accordingly make a formal finding in accordance with s. 52(2)(b) of the Act that the accused is guilty of murder as charged (count 1), of unlawful possession of a firearm as charged (count 2), and of unlawful possession of ammunition as charged (count 3).

[6] I now proceed to consider and determine an appropriate sentence for the accused.

[7] The state led no viva voce evidence in aggravation of sentence. The accused also led no viva voce evidence in mitigation of sentence and he elected not to testify, but Adv van der Westhuizen placed facts before me in mitigation of sentence from the bar. Both counsel for the State and the defence addressed me on the matter of sentence.

[8] A pre-sentence report compiled by a social worker from the Gauteng Department of Welfare and Population Development was handed in by consent at the commencement of the sentencing proceedings (exhibit “B”). The information contained therein appears to have been obtained during separate interviews with the accused and with the deceased’s sister, Ms Ellen Mwelase. The information supplied by the accused and by Ms Ellen Mwelase differs in material respects. They did not give viva voce evidence and the information furnished by them was accordingly not tested under cross-examination and is hearsay. To accept the version of Ms Ellen Mwelase on pertinent disputed issues will not be fair to the accused and no exceptional circumstances exist in casu why her hearsay evidence should be taken into account against the accused [see: S v Rooi; S v Van Neel 1980 (1) SA 363 (KPA), at p 365H].

[9] If the murder ‘was planned or premeditated’ then it is an offence referred to in Part I of Schedule 2 to the Act for which it is necessary, in terms of ss. 51(1) and 51(3)(a), to impose a sentence of imprisonment for life unless ‘substantial and compelling circumstances’ justify a lesser sentence. If it was not planned or premeditated then it is an offence referred to in Part II of Schedule 2 for which it is necessary, in terms of ss. 51(2) and 51(3)(a), to sentence a first offender to imprisonment for a period of not less than 15 years unless ‘substantial and compelling circumstances’ justify a lesser sentence.

[10] The approach of a sentencing tribunal to the imposition of the minimum sentences prescribed by the Act is to be found in the judgment of Marais JA in S v Malgas 2001 (1) SACR 469 (SCA). At pp 481 h – 482 f, the following summary is given:

“A. Section 51 has limited but not eliminated the courts’ discretion in imposing sentence in respect of offences referred to in Part I of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2).

B. Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts.

D. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.

E. The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick (‘substantial and compelling’) and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H. In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the Legislature has provided.”

[see also S v Fatyi 2001 (1) SACR 485 (SCA) para 5; S v Abrahams 2002 (1) SACR 116 (SCA) para 13; S v Blignaut 2008 (1) SACR 78 (SCA) para 3].

[11] It is trite that ‘punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.’ [see: S v Rabie 1975 (4) SA 855 (A) at p 862G]. In the assessment of an appropriate sentence regard must be had inter alia to the traditional aims of sentencing such as personal deterrence, rehabilitation and reformation [see: S v Blignaut 2008 (1) SACR 78 (SCA) at p 82 e - f].

[12] The accused was born in Springs on 2 February 1964 and he is presently 44 years of age. His father died when he was very young. His mother, Ms Winnie Mwelase, and the deceased, Isaac Makhala Mwelase, were married during 1972 when the accused was approximately eight years old. The accused only achieved a standard 1 qualification at school. Apart from being employed by Sappi during 1987, the accused never enjoyed permanent employment and only performed casual labour from time to time. He is unmarried. He is the father of two children born from different women, but he does not know the ages of his children and he pays no maintenance for them. Except for the substantial periods when the accused was incarcerated since 1986, he always resided with his mother, and since their marriage in 1972, with the deceased and his mother until the death of the deceased on 11 July 2004.

[13] In amplification of the accused’s written statement that had been handed into court in terms of section 112(2) of the Criminal Procedure Act 51 of 1977, the accused’s legal representative at the proceedings in the regional court, Mr Mnguni, informed the court “…that there was a history of a bad relationship between him and his father and he knew that his father, his stepfather, had a firearm but it was always kept in the safe.” The firearm was a .38 revolver. The accused stated in his section 112(2) written statement that the deceased had a tendency of threatening him with the firearm from time to time when the accused arrived home late. As part of the facts placed before me in mitigation of sentence from the bar, Adv van der Westhuizen referred to a long history of relationship problems between the deceased and the accused since the accused was very young. It was stated that the deceased failed to pay school fees for the accused and the accused accordingly had to leave school and he only advanced to standard 1. Apart from the threats to shoot the accused when he arrived home late, the deceased also threatened to shoot the accused from time to time when he refused to accede to requests for money from the deceased. In the pre-sentence report, the social worker stated that the accused informed her that the deceased “was treating him like a stranger”, that the deceased “pointed a gun at him several times”, that the accused “did not receive love from his stepfather from his early childhood”, that “it was only his mother who cared for him”, that the accused “stopped going to school due to the fact that his stepfather stopped paying school fees”, and the accused “grew up being unhappy.”

[14] On 11 July 2004, the accused and the deceased were at home. They resided at 21559 Extension 11 Tsakane. The deceased was sleeping. The accused saw the deceased’s firearm on the dressing table next to the bed on which the deceased was sleeping. He “… saw that there is an opportunity to revenge on what his father or stepfather was doing to him. He had a sort of a grudge against his father. But on that particular day his stepfather was just lying on the bed. There was no argument or anything between the two of them.” The accused took the firearm from the dressing table next to the deceased’s bed and shot him at close range – approximately 2 to 5 centimetres – in the head just above the left eye while the deceased was still sleeping. The deceased died as a result of the gunshot wound to his head. The accused admitted that he had the direct intention to kill the deceased. He foresaw at the time that his actions would lead to the death of the deceased, but none the less proceeded with his attack, reconciling himself with the inevitable death of the deceased. The accused thereafter took the firearm with its remaining ammunition to a nearby veld ‘…because he wanted to hide it away from the police after [he] shot the deceased…’.

[15] It has not been proved beyond a reasonable doubt that the murder was planned or premeditated. The accused rather acted on the spur of the moment in terms his guilty plea which was accepted by the State. It is accordingly an offence referred to in Part II of Schedule 2 to the Act for which, in terms of ss. 51(2) and 51(3)(a), the applicable minimum prescribed sentence is imprisonment for a period of not less than 15 years unless ‘substantial and compelling circumstances’ justify a lesser sentence.

[16] The shooting of the deceased at close range with the direct intent and sole purpose of killing the deceased under circumstances where there was no argument “…or anything…” between them, where the accused was not provoked by the deceased, and where the deceased was defenceless and merely lying on his bed sleeping, amount to no less than the commission of a heinous crime that was carried out callously.

[17] On the accused’s own version he acted out of revenge for what had been happening in the past between him and his stepfather. Generally, revenge as a motive does not mitigate the offence [see: S v Namane 1977 (4) SA 240 (A)]. It is also inappropriate to regard ‘domestic murders’ as ‘automatically less morally reprehensible.’ The facts of each case should, however, be carefully considered in order to determine whether the particular conflict situation, such as the stepfather-son conflict situation in casu, and consequent emotional or psychological disturbance that may result therefrom, is a circumstance which probably influenced an accused’s state of mind in the commission of the crime which was committed, whether such influence is of a nature that reduces an accused’s moral blameworthiness or guilt, and if so, the extent to which such mitigating circumstance should influence the severity of the sentence to be imposed [compare: S v Khwela 2001 (1) SACR 546 (NPD), at pp 548 i - 549 c].

[18] On the facts before me I must give the accused the benefit of the doubt and accept that he grew up unhappy without receiving the love from his stepfather to which any stepchild is entitled, that he was precluded through the conduct of his stepfather from receiving a basic education, and that his stepfather pointed a firearm at him and threatened to shoot him on several occasions. It was with the same firearm that he then shot and killed the deceased. I accept in the accused’s favour that such circumstances probably influenced his state of mind in the commission of the crime which was committed, and such influence, in my judgment is of a nature that reduces the accused’s moral blameworthiness or guilt. Relevant to the determination of the extent to which these mitigating circumstances should influence the severity of the sentence which should be imposed are the facts that the accused was not young when he committed the crime, but a man of 40 years of age, and he did not live with his stepfather and mother during the periods when he was incarcerated, which was most of his adult life. During 1986 he was sentenced to four years imprisonment, during 1989 to six years, during 1996 to two years, and during 1998 to seven years. He returned to and resided with his stepfather and mother from time to time of his own volition during his adult life when he was not incarcerated.

[19] The accused pleaded guilty to all three charges brought against him. In both his written statements that had been handed into the regional court in terms of section 112(2) of the Criminal Procedure Act, the accused expressed his deep regrets for his actions. Adv van der Westhuizen also repeated from the bar that the accused regrets his actions. I accept that the accused has demonstrated remorse by pleading guilty and through the statements of remorse made by him and on his behalf [see: S v Blignaut (supra) at p 83 a – b). The fact that the accused is remorseful makes him a better candidate for rehabilitation [see: S v Coales 1995 (1) SACR 33 (A) at p 36 a – d].

[20] The accused has already been in custody for approximately three years and ten months since 11 July 2004, which in itself constitutes ‘substantial and compelling circumstances’ justifying the imposition of a lesser sentence than the minimum prescribed by the Act [see: S v Vilakhazi 2000 (1) SACR 140; S v Brophy 2007 (2) SACR 56 (WLD)].

[21] Murder is a particularly heinous and very serious crime of the kind which the Legislature has singled out for severe punishment. The prevalence of crimes of violence in the country and the community’s interest in having the courts deal severely with such offenders and particularly for an appropriately severe punishment being imposed for murder requires no elaboration.

[22] The list of previous convictions of the accused, which the state produced and that was admitted by the accused (exhibit “A”), included five previous convictions of housebreaking with the intent to steal and theft for which he was convicted on 9 May 1986, on 17 October 1986, on 3 January 1989, on 18 June 1996 and on 8 June 1998, and in respect of which he was sentenced to five lashes, four years imprisonment, six years imprisonment, two years imprisonment and seven years imprisonment respectively. I do not take the accused’s other previous convictions into account in the determination of an appropriate sentence.

[23] The accused’s five previous convictions of housebreaking with the intent to steal and theft bear no relationship to his present convictions and they

‘…are relevant in a limited sense only and simply with a view to determining to what extent, if any, the forms of punishment imposed for those crimes served as effective deterrents for the person in his or her career of crime and also to indicate the extent to which the person has an uncontrollable urge to lawlessness which reduces the chances of reform.”

[see: S v Muggel 1998 (2) SACR 414 (CPD), at p 419 f – g ].

[24] The increasing terms of imprisonment imposed upon the accused in the past clearly did not serve as effective deterrents for the accused in his ‘career of crime’.

[25] The personal circumstances of the accused, his reduced moral blameworthiness, his plea of guilty, his prospects of reform in the light of his remorse, and his time spent in custody, cumulatively amount to substantial and compelling circumstances within the meaning of the Act when balanced against the enormity of the crime (murder and the circumstances under which it was committed), the public interest in an appropriately severe punishment being imposed for it, the general deterrence aspect, the personal deterrence aspect (it is against the accused that his criminal transgressions occurred relatively early in his adult life and continued throughout his adult life), and the accused’s reformation (the accused’s previous sentences served indicate reduced chances of reform on his part). Such circumstances cumulatively regarded satisfy me that a sentence of 15 years imprisonment would be unjust. I am satisfied that a departure from the prescribed minimum is justified on the basis that such a sentence would be disproportionate to the crime, the criminal and the legitimate interests of society.

[26] A lengthy custodial sentence is clearly warranted. The seriousness of the crime committed by the accused would in my view have called for a term of imprisonment in excess of the prescribed minimum period of fifteen years had it not been that substantial and compelling circumstances justify a lesser sentence.

[27] I consider a sentence of twelve years’ imprisonment to be appropriate in respect of count 1, murder. I further consider a sentence of two years’ imprisonment to be appropriate in respect of count 2, unlawful possession of a firearm, and one year imprisonment in respect of count 3, unlawful possession of ammunition.

[28] In the result the accused is sentenced to:

A. (a) Imprisonment for a term of twelve years pursuant to the accused’s conviction on count 1 – murder;

(b) Imprisonment for a term of 2 years pursuant to the accused’s conviction on count 2 – unlawful possession of a firearm;

(c) Imprisonment for a term of 1 year pursuant to the accused’s conviction on count 3 – unlawful possession of ammunition;

B. The sentences of 2 years’ and 1 year imprisonment in respect of counts 2 and 3 shall run concurrently with the sentence of twelve years’ imprisonment in respect of count 1.

P.A. MEYER

JUDGE OF THE HIGH COURT

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