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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE:  NO.

(2) OF INTEREST TO OTHER JUDGES: NO.

(3) REVISED.

DATE  29 September 2020                    

                                                                                           CASE NO: A431/2018

 

 

In the matter between:                                                             

TSEPO MICHAEL MORAKE                                                                     Appellant

and

THE STATE                                                                                              Respondent

 

J U D G M E N T

This appeal has been heard in terms of the Directives of the Judge President of this Division dated 25 March 2020, 24 April2020 and 11 May 2020.  The judgment and order are accordingly published and distributed electronically.

 

DAVIS, J

[1]             Introduction

On 12 June 2014 the appellant was convicted on one charge of murder as well as two charges relating to possession of a firearm without a licence and the unlawful possession of ammunition respectively.  On 18 June 2014 the appellant was sentenced to life imprisonment in respect of the murder conviction and to 15 years and 12 months imprisonment in respect of the other two charges respectively.  The sentences were ordered to run concurrently.  This is the judgment in the appellant’s appeal against sentence, for which he has an automatic right in terms of section 10 of the Judicial Matters Amendment Act, 42 of 2013.

[2]             Sentencing principles

It is trite that, in considering an appropriate sentence, regard should be had to the nature of the offence, the personal circumstances of the offender and the interests of society.   See S v Zinn 1969(2) SA 357 (A) and the numerous annotations thereon.  The learned magistrate also (correctly) referred to the four objectives of sentencing, being prevention, deterrence, rehabilitation and lastly, punishment.  In circumstances where the murder falls into the category of section 51(1) of the Criminal Law Amendment Act 105 of 1997, read with part I of Schedule 2 thereof, being a premeditated murder or one committed in the execution of a common purpose or committed in order to unlawfully remove a body part or where the death of the victim resulted from or was related to an offence contemplated in the Witchcraft Suppression Act, 3 of 1957, the prescribed sentence is one of life imprisonment.  Such a prescribed minimum sentence can only be departed from in the event that the sentencing court finds substantial and compelling circumstances to do so.  Lastly, the principle on appeals against sentence is that the imposition of punishment is pre-eminently a matter for the discretion of the trial court.  Courts of appeal should be careful not to erode such discretion and only interfere where the trial court has not exercised its discretion judicially and properly or where the sentence imposed is shockingly disproportionate.  See inter alia: S v Rabie 1975 (1) SA 855 (A) and S v Pillay 1977 (4) SA 531(A)

[3]             The nature of the offence

3.1            The offence can best be described by the appellant himself in a confession he had made before a separate and independent magistrate (being a different magistrate than the trial magistrate):

“This lady bewitched my brother and my wife.  She said she will finish off with my sibling.  We, I took my brother and my wife to a traditional doctor and on our return, that lady asked for forgiveness.  We did forgive her, but she proceeded with her deeds.  Yesterday I was with my sibling when we decided that we should kill her before she finishes us up.  I then shot her.  My sibling cut her ear and also cut her below her left eye.  The incident occurred yesterday at about 7h00 in the afternoon at Senzele RDP area as she gets off from a taxi”.

3.2            Despite this confession, the appellant and his brother pleaded not-guilty.  This required the State to lead the evidence of certain police officers.  The first was the investigating officer who was also one of those who had attended to the murder scene at about 20h00 on 23 July 2012.  He found the deceased lying in a pool of her own blood next to a spent firearm cartridge.  She had sustained two gunshot wounds.  Her right ear had been cut off and she had a wound below her right eye.  He later accompanied the arresting officer who also testified.  Acting on information received, the appellant and his brother was found in a two bedroom dwelling with two other people.  Two firearms were recovered from under the beds on which appellant and his brother had been sleeping, one of which was later ballistically matched to the cartridge found on the murder scene.  A bloodstained knife was also found on the window sill in one of the rooms.  The blood was later DNA linked to the deceased.  Another police officer, a dog-handler who was also present during the arrest, also testified.  He confirmed the particulars of the fire-arms and ammunition found during the arrest with reference to contemporaneous notes he had made in his pocket-book.  The police also found the deceased’s ear and a piece of flesh wrapped in a plastic bag buried at the back of their sleeping quarters.  The two other police officers involved in the arrest also testified.  The magistrate to whom the confession had been made also testified.  He was only asked two questions in cross-examination, relating to whether the appellant had been advised of his rights prior to making the confession, which the magistrate confirmed had taken place.  The magistrate even referred to a follow-up question provided for in the form on which the confession had been recorded, relating to the provision of legal assistance, which the appellant had declined.     

3.3            Pursuant to the above evidence, the appellant changed his instructions to his counsel and made a number of formal admissions relating to the ballistic tests, the post-mortem report, the DNA report and, in respect of his confession, formally stated the following on record: “I admit the contents and the signature appearing on the confession which is already handed into court as an exhibit to be correct.  That was made by myself, freely, voluntary and I appended my signature thereto”.

3.4            The appellant’s co-accused made the same formal admissions and further stated the following: “I admit that on the day of the incident as alleged in the charge sheet, I was in the company of my co-accused no 1, as the events of that day unfolded, as it was outlined by my co-accused no 1 in his confession and as also read by the State when it put the charges against me.  I acted in common purpose with my co-accused 1 in that I actively associated myself with his actions which lead to the death of the deceased”.

3.5            I interpose to state that, at the close of the State’s case, the application for discharge made by the two other persons who had been found in the same house or living quarters as the appellant and his brother, which application was made in terms of section 174 of the Criminal Procedure Act, 51 of 1977, was successful.  One of these persons was the appellant’s wife.

3.6            The appellant and his brother tendered no evidence on the merits and were subsequently each found guilty as charged.  The charges relating to possession of a fire-arm and ammunition against the brother, were in relation to the second firearm found during the arrest of the two brothers.

[4]             The personal circumstances of the appellant

4.1            The appellant was 31 years old at the time of commission of the offences, he was married and the father of triplets who were born while he was in custody pending finalization of the trial.  He was unemployed at the time of his arrest and was a Lesotho citizen who came to South Africa in 2006.  He performed part-time security work from time to time.  He had passed Grade 8 in Lesotho.  His parents had passed away while he was three years old.  Since then he had lived with his sister.  She had passed away in 2011 and he financially looked after her two children, although they were, since the passing of the sister, living in Lesotho.  He had one prior conviction in 2010 for possession of stolen property.  The brother also hails from Lesotho and also looks after his own two children, living with their mother in Lesotho.  The brother was also unemployed at the time, having only been in South Africa for 1 month prior to the murder.

4.2            The appellant had been in custody for almost 2 years at the time of sentencing.

4.3             The appellant had not displayed or at least, verbalised any remorse.

[5]             The interests of society:

In Mogaramedi v S 2015 (1) SACR 427 (GP) this court held that cultural and religious beliefs must respect life and must be practiced in line with the Bill of Rights.  The court continued as follows at para [35]:

“Bearing in mind the strong cultural belief surrounding traditional healers and the fact that muti killings are unlikely to stop in the future, it is the task of this court to deter the killing of innocent people for such purposes.  The community must be protected.  The aspect of general deterrence is of importance to restore the trust the community [has] in the justice system.  To regard such killings as substantial and compelling circumstance would send out the wrong message to the community.  The prevalence of such cases in South Africa is high.  The continuation of such killings will create more instability in the communities where such practices are rife.  A strong message must be sent out that such conduct will not be condoned in a civilized society.  Where such killings arise they must be punished with the full strength of the law”.

[6]             The consideration of sentencing by the magistrate

6.1            Upon a reading of the magistrate’s judgment in pronouncing sentence, it appears that the magistrate was clearly aware of the relevant principles set out in paragraph 2 above.

6.2            The magistrate considered the absence of remorse and the fact that the appellant’s co-accused had been forced to endure 23 month’s incarceration prior to their discharge application whilst the appellant and his brother had known these co-accused to be innocent as aggravating factors.  While the absence of remorse is a relevant factor, at least when compared to the display of genuine remorse as a mitigating factor, I am not convinced of the second ground as a separate aggravating factor.  It formed part of the magistrate’s almost emotional approach to sentencing when she voiced that she found the “senseless motivation you people employed that lead to the death of this young woman” aggravating.  I shall assume in her favour that “you people” in this instance referred to the accused and not to any wider segment of society.

6.3            Although the appellants did not testify in mitigation of sentence, their counsel made the following statements on their behalf: “Your worship, I know there is no particular stage whereby one has to express his or her own remorse, your worship, but your worship, it was my instruction when they instructed me that they now intend to admit everything that have happened and exonerate accused 3 and 4, who have suffered also for a long period of time in custody because of their own actions, your worship.  They instructed me that they are so remorseful for that also, your worship.

And Your Worship, when I consulted with them, that what took you so long?  At the end of the day my instructions from them, it was that you know, with the level of education that we went through, we could not understand even some of the proceedings, but we did, we were informed that this is the witchcraft related case, Your Worship, according to them.  Having regard to their level of education of schooling and the background under which they grew up from, they thought that one could commit such an act because of witchcraft, Your Worship.  That is what they instructed me.  They instructed me about, Your Worship.

6.4            The learned magistrate found no compelling or substantial circumstances to deviate from the prescribed minimum sentence of a premeditated murder and imposed the life sentences referred to earlier.

[7]             Evaluation

7.1            It is correct that the heineous crime of a cold-blooded murder of a young woman by gunning her down and leaving her for dead in a dusty street deserves a harsh sentence.

7.2            It must also be correct however, that something terrible must have motivated a married soon-to-be father who even takes care of his deceased sister’s children with what meagre income he has, to commit such a crime.  He was not motivated by greed or avarice, there was no motive of robbery or some other personal financial gain involved in this murder.  The only motivation was the belief in witchcraft and the fear of harm for himself, his wife and his brother.  Both the belief and the fear must have been real to motivate the killing of the deceased.

7.3            It is a pity that no pre-sentencing report was procured or that this aspect had not been explored more fully.  There was no explanation for the cutting and removal of the deceased’s ear and small piece of flesh placed before the court.  Clearly this formed part of the belief in witchcraft as did the fact that these items were buried in the back yard of the appellant’s house.  The issue of belief in witchcraft is not something to be simply glossed over or ignored as is evident from research such as the Law Reform Commission Discussion Paper 139 on the Review of the Witchcraft Suppression Act, 3 of 1957.  In not properly assessing or considering these issues, the magistrate misdirected herself and, in my view, to such an extent that a court of appeal is not only entitled, but obliged, to revisit the issue of sentence.

7.4            In Director of Public Prosecutions v Moloto 2019 (2) SACR 123 (SCA), reference was also made to the judgment referred to in paragraph 5 above regarding the belief in witchcraft and the fact that crimes, such as murder, committed under such a belief need to be stamped out.  In Moloto the Supreme Court of Appeal also referred to S v Phama 1997 (1) SACR 485 (E) where it was mentioned that “society demands that [victims who are not witches] too, be given justice.  Society demands that people like them should not suffer the same fate.  The deterrent and preventative elements of criminal justice and also, but not to the same extent, the retributive element, require that [a] sentence should reflect the revulsion of society at the readiness to resort to criminal violence; the horror of society that human life should be made so cheap and the need to show the accused and other potential offenders that the price they must pay for resorting to murder in order to eliminate an alleged witch or wizard from their midst is not worth it”.

7.5            In Mogaramedi the accused was a practicing sangoma who had murdered his sister to obtain her genital organs which he needed to complete his final initiation and in Phama the motive was found to be vengeance rather than fear.  Neither of those considerations or circumstances are applicable in the appellant’s case.  Those judgments are therefore distinguishable.  The appellant’s case is more on par with those of S v Netshiavha 1990 (2) SACR 331 (A) and S v Latha 2012 (2) SACR 30 (ECG) where the acts committed were all motivated by fear.

7.6            I am, in similar fashion as the example set by the Supreme Court of Appeal in Moloto (above)  (where a sentence of 10 years’ imprisonment was imposed) prepared to accept that the appellant’s fear of harm for himself and others, taken cumulatively with his personal circumstances, constitute substantial and compelling circumstances, justifying a deviation from the prescribed minimum sentence.  I would consider the imposition of a sentence of 20 years imprisonment a fair and just sentence in the circumstances of this case.  Despite the fear, the premeditation and absence of a second attempt to get the deceased to desist from her perceived conduct, place the matter at an aggravated level higher than that of Moloto referred to earlier.  The sentences in respect of the other charges and the finding of concurrence should remain.  The time spent in custody should also be taken into account and be reflected in the proposed order.

[8]             Order:

1.     The appeal against sentence is upheld in part.

2.     The sentence of life imprisonment in respect of count 1 is set aside and is replaced with a sentence of 20 years imprisonment, backdated to 24 July 2012.

3.     The sentences imposed on counts 2 and 3 and the fact that all sentences are to run concurrently, as well as the declaration that the appellant is unfit to possess a firearm, remain unchanged.

 

 

                                                                                               

                                                                                               N DAVIS

                                                                                 Judge of the High Court

                                                                              Gauteng Division, Pretoria

 

 

I agree.

 

 

­                                                                               

   LGP    LEDWABA

                                                                             Acting Judge of the High Court

                                                                              Gauteng Division, Pretoria

 

 

 

It is so ordered.

 

 

Date of Hearing:  25August 2020

Judgment delivered: 29 September 2020

 

 

APPEARANCES:

For the Appellant:                    Mr M B Kgagara 

Attorney for Appellant:           Pretoria Justice Centre

 

For the Respondent:                 Adv C Pruis         

Attorney for Respondent:        Director of Public Prosecution, Pretoria                                                                                                               

 

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