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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, BHISHO JUDGMENT

PARTIES:

THE STATE

versus

NKCOBO SISILANA Accused No 1

and

MAWETHU SISILANA Accused No 2

• Registrar: CASE NO: 104/06

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 04/02/08, 10/03/08, 11/03/08, 12/03/08, 13/03/08, 14/03/087, 18/03/08, 19/03/08, 13/05/08, 15/05/08, 15/09/08, 27/10/08, 01/12/08, 02/12/08, 04/12/08, 27/01/09, 28/01/09, 12/02/09, 16/03/09

DATE DELIVERED: (judgment) 17/03/09

DATE DELIVERED: (SENTENCE) 23/03/09

JUDGE(S): EBRAHIM J:

LEGAL REPRESENTATIVES –

Appearances:

1. for the Appellant(s) State.: Ms Phiti

2. for the Respondent(s) Accused no 1: Mr Korkie

Accused no 2: Mr Ndunyana

Instructing attorneys:

1. Appellant(s) DPP:

2. Respondent(s):

CASE INFORMATION -

1. Nature of proceedings : Sentence

IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO: 104/06

THE STATE

versus

NKCOBO SISILANA Accused No 1

and

MAWETHU SISILANA Accused No 2

SENTENCE

Y EBRAHIM J:

1. Accused no. 1, Nkcobo Sisilana, and accused no. 2, Mawethu Sisilana, have been convicted of the crime of murder. Accused no. 1 has also been convicted of a contravention of s 120(6)(a) and (b) read with s 121 and Schedule 4 of the Firearms Control Act, 60 of 2000, namely that he unlawfully pointed a firearm at another person. I must now impose sentence.

2. In determining an appropriate sentence a court has regard for the personal circumstances of the accused, the nature of the crime, and the interests of society.¹ In appropriate circumstances a court will also exercise a measure of mercy.²

3. Both of you exercised your right not to testify and elected not to present the evidence of any witnesses in mitigation of sentence. Your personal circumstances have been conveyed to the Court by your legal representatives who have made various submissions.

4. Accused no. 1 you are 53 years old and married with three minor children aged 10, 14 and 17 years. You also have two adult children who are self supporting. You have been employed by the Provincial Department of Roads and Transport as a traffic officer since 1982 and your present monthly salary is about R8 000,00. You also operated a passenger bus business and earned about R800,00 per week but you have closed this business. You also own a liquor store which generates a monthly profit between R8 000,00 to R9 000,00. You do not have any previous convictions.

5. Accused no. 2, you are 34 years old and married with three minor children aged 7, 6 and 4 years. You joined the South African Police Services in 2002 and have a Diploma in Human Resources Management. You are a constable and presently earn R7 000,00 per month. You have a previous conviction as you were convicted of rape and sentenced to 7 cuts with a light cane in 1991 when 17 years old. More than 10 years have elapsed since the conviction and I am disregarding it for purposes of sentence.³ I therefore consider you to be a first offender.

6. It is stating the obvious but it bears repeating that murder is the most serious of crimes. In wrongfully taking the life of the deceased your actions have impacted on the lives of the deceased’s family, relatives and friends. They must now deal with the emotional trauma that his violent and premature death has thrust on them.

7. The right to life is entrenched in the Bill of Rights of the Constitution.⁴ In terms thereof every individual, which includes the two of you, is entitled to this right. Yet you showed no respect for the deceased’s right to life. You carried out a vicious and callous assault without regard to the consequences thereof and specifically whether or not he would die.

8. Accused no. 1, irrespective of what the deceased may have done and no matter how frustrated you were because of the failure of the police to arrest him it did not give you the right to take the law into your own hands by resorting to vigilante justice and inflicting an unlawful and sustained assault on the deceased in order to exact retribution. As law enforcement officers the two of you were far more aware than others that the function of dispensing justice is vested in the Courts. It rests solely with a Court to determine the guilt of a person and upon conviction to impose appropriate punishment. It brings the police and the entire justice system into disrepute when members of law enforcement agencies, who have a sworn duty to respect, protect and uphold the law, do not honour this responsibility and, what is worse, show total disrespect for the law by imposing their own form of justice.

9. It has become apparent that there is an increasing disrespect for the law. On top of this violent crime remains a serious and vexing problem in our society. The news media reports constantly and prominently on crimes of a violent nature. Often the public’s reaction to such crimes is highlighted with calls for Courts to deal more harshly with the perpetrators of such crimes. Court’s are alive to the interests of society and recognise they have a duty to protect the right of law abiding members of society not to live in constant fear of violence whether against their person or property. But, even if we are dissatisfied with how crime is tackled and justice is administered it can never justify what you have done.

10. The purposes of sentence are deterrent, preventative, reformative and retributive.⁵ A sentence must deter others from committing similar offences as well as crime in general. In regard to retribution, a court takes account of society’s moral outrage at the nature of a particular crime and its frequency. A court will also provide an accused with the opportunity for rehabilitation which has to be balanced against the seriousness of the offence where a lengthy term of imprisonment is appropriate. A court must bear in mind that if a sentence for an extremely serious offence is unduly lenient public confidence in the justice system would be undermined.

11. Criminal Law Amendment Act⁶ (‘CLA Act’) prescribes specific periods of imprisonment for certain crimes. In respect of murder that is not premeditated or planned a sentence of imprisonment for fifteen years is prescribed. A Court may however depart from the prescribed sentence if there are substantial and compelling circumstances that justify the imposition of a lesser sentence. In assessing whether such sentence is justified the Court will take account of any aggravating factors and the nature and extent thereof.

12. Mr Korkie submitted on your behalf accused no. 1 that a lesser sentence is justified because of your personal circumstances and because you are a first offender and do not pose a threat to society. He referred the Court to the sentence imposed by the High Court, Bisho in S v Mhlabeni⁷ in which, he said, the accused was convicted of murder and sentenced to imprisonment for fourteen years of which half was suspended, alternatively a fine of R14 000,00 of which half was suspended. Mr Korkie did not hand up a copy of the judgment and when the Court enquired why he had not done so he replied that he had given his copy to his client to peruse and would provide the Court with a copy later. Although admonished for not ensuring that a copy was available so that the Court could properly consider the judgment Mr Korkie still refrained from providing one. A copy had not been furnished by the time this judgment was prepared and even now there has still not been compliance.

13. Since the judgment was not provided I took steps to obtain a copy thereof. Consequently I called for the relevant court file. On perusing it I found that it did not contain the judgment on sentence or the Court’s judgment in respect of the conviction of the accused. I can only assume that both were ex tempore judgments and were therefore not transcribed. What was evident from the court file was that the accused had been arraigned on one count of murder, two counts of kidnapping, one count of contravening s 120(6)(a) of the Firearms Control Act, 60 of 2000, and one count of assault with intent to do grievous bodily harm. Further, that the accused was acquitted of murder but convicted on the remaining counts. It was thus manifestly incorrect and misleading to submit that the accused had been convicted of murder. The submission regarding sentence was also incorrect as the term of imprisonment was not 14 years of which half was suspended, alternatively a fine of R14 000,00 with half suspended. In fact the Court imposed a separate sentence for each conviction. On each of the convictions for kidnapping the accused was sentenced to a fine of R5 000,00 or in default of payment thereof to undergo 18 months imprisonment, half suspended conditionally for 5 years. On the contravention of provisions of the Firearms Control Act the accused was sentenced to a fine of R1 000,00 or in default of payment thereof to undergo 6 months imprisonment. In regard to the conviction for assault with intent to do grievous bodily harm the accused was sentenced to a fine of R2 000,00 or in default of payment thereof to undergo 12 months imprisonment of which half was suspended conditionally for 5 years. The fines thus amounted to R13 000,00 and not R14 000,00. Mr Korkie’s incorrect and misleading submissions raise ethical issues and I intend commenting on this after I have imposed sentence on the accused.

14. Each case, it must be stressed, is dealt with on its own facts in regard to the crime and the criminal. While previous cases provide useful guidance in determining an appropriate sentence they cannot be followed blindly. The circumstances of each case vary and the fact that a particular sentence has been imposed in one case does not mean that it is equally appropriate in another. It is seldom, if ever, that the circumstances in two cases are so identical that it can be argued that it is in the interests of justice to impose similar sentences. In the present situation the problem that confronts me is that I am unable to consider the merits of the sentences imposed by Van Zyl J and on what grounds he did so in the absence of his judgments. The limited information available in the court file is of little, if any, assistance in determining an appropriate sentence.

15. A further case Mr Korkie has referred to is that of S v Maritz⁸ in which the accused was convicted of murder but on appeal the conviction was altered to culpable homicide. Although the accused there was also a policeman the circumstances resulting in the death of the deceased were entirely different and the sentence of four years’ imprisonment was for the offence of culpable homicide and not murder. I have nevertheless considered the judgment and noted the remarks of the Appellate Division, as it then was, in relation to factors it considered when determining sentence.

16. In respect of you, accused no. 1, Mr Korkie said that the position you held was one which required you to supervise junior traffic officials. It is evident that you have extensive experience in the law, albeit in relation to traffic matters. You cannot claim that you were ignorant of the consequences of engaging in unlawful conduct. Your actions did not set an example for junior officers to follow. They probably looked up to you as their supervisor. I sincerely hope they will recognise that your conduct cannot be condoned under any circumstances.

17. Mr Korkie implied that direct imprisonment was inappropriate. I reject this. In my view, direct imprisonment is the only appropriate sentence. The sentence has to convey that the unlawful and unjustifiable taking of human life is an extremely serious offence, particularly when those who perpetrate it are individuals whose duty it is to uphold the law.

18. On your behalf accused no. 2 Mr Ndunyana submitted that there were compelling and substantial circumstances that justified a lesser sentence. These were your personal circumstances, your stable family life, that you were gainfully employed and had a good chance of being rehabilitated. He contended that provocation, even though not aimed at you, played a role. You experienced emotional upheaval and anger and had been dragooned into the events by accused no. 1. He conceded that you had not shown remorse and admitted that there were aggravating factors. He said violence had been inflicted on a young man who was asleep and very drunk. This took place in front of his family and the public and was perpetrated by peace officers who should have acted in an exemplary manner and should have observed and honoured the rule of law and our constitutional democracy.

19. There is no merit in Mr Ndunyana’s submissions that substantial and compelling circumstances exist. I do not accept there was any provocation. There is also no evidence that you were dragooned into assisting accused no. 1. The evidence confirms that you were not under the influence of accused no. 1 but a willing participant. Your are no less culpable than accused no. 1 and I find no basis for treating you more leniently in terms of the sentence that must be imposed.

20. Your legal representatives have stated that they could not submit that either of you were remorseful for your actions. I take this into consideration. The Supreme Court of Appeal has recognised that remorse or the lack thereof may be taken into account in determining sentence.⁹

21. Ms Phiti submitted that the seriousness of the crime did not justify a lesser sentence. She contended that this was a gruesome murder of a defenceless person. It was unnecessary and unprovoked. You attacked him in front of his family who could not defend him as both of you were carrying firearms. You were peace officers who had to uphold the law but showed a total disregard for it. Ms Phiti submitted that the factors identified by your legal representatives as being of a mitigating nature could not be considered as being exceptional.

22. There is clearly merit in Ms Phiti’s submissions. The assault of the deceased was brutal and totally unjustified. It was perpetrated over a period of 2½ hours. This illustrates the seriousness of the crime. Both of you are law enforcement officers and more than anyone else knew that you should not take the law into your hands. Your conduct does not impress upon the ordinary person that the law must be respected and that lawlessness has no place in a democratic society. These are all aggravating factors.

23. The Supreme Court of Appeal has stated that the prescribed periods of imprisonment in the CLA Act are to be considered as ordinarily appropriate for the crimes specified therein and are not to be departed from lightly.¹⁰

24. I have taken account of your respective personal circumstances but do not consider these to be substantial and compelling circumstances. There is no justifiable reason for imposing a lesser sentence than the prescribed one of imprisonment for fifteen years. The aggravating factors are such that I seriously considered imposing a harsher sentence than that of fifteen years. However, I have decided to show you a measure of mercy in spite of you not showing the deceased any and will not impose a more severe sentence.

25. In the result, after weighing up all the relevant factors I find that the only appropriate sentence is the prescribed minimum for murder. Each accused is accordingly sentenced to imprisonment for fifteen (15) years. In respect of the contravention of s 120(6)(a) and (b) read with s 121 and Schedule 4 of the Firearms Control Act, 60 of 2000, accused no. 1 is sentenced to imprisonment for two (2) years which is to run concurrently with the sentence imposed on count 1.

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JUDGE Y EBRAHIM 23 MARCH 2009

ADDENDUM

26. Having dispensed with sentence I turn to the issue concerning Mr Korkie. As I stated previously Mr Korkie’s submissions in respect of the sentence imposed in S v Mhlabeni did not accord with the true facts. The submissions were not merely erroneous but also wholly misleading. The fact that the accused was not convicted of murder meant the sentence could certainly not have been imposed for such an offence and was in respect of the other offences on which he had been indicted. This conclusion did not require any special legal insight and was readily apparent from the information in the court file. The only reasonable inference to be drawn is that Mr Korkie intended to mislead this Court by submitting that the accused had been convicted of murder and that the sentence that was imposed was for this conviction.

27. It is a clearly established practice in our Courts, that is akin to a principle, that counsel, or an attorney, must convey factually accurate information to the Court whether it be in respect of another Court’s judgment or any details regarding a matter another Court has heard. When counsel or the attorney fails to do this it is a breach of his or her ethical duty to act with the utmost good faith in imparting information to a Court. The Court is entitled to expect that what has been placed before it is accurate and truthful in every respect and that there is no need for the Court to have to verify the veracity thereof.

28. My prima facie view of what has occurred in this instance is that counsel has not acted with the required utmost good faith. Any failure to adhere to this time honoured practice means that a Court would in each instance have to conduct its own independent enquiries to verify the information placed before it. In addition to the obvious additional burden this places on the Court being able to carry out its function of adjudicating issues it would undermine the relationship of trust that must exist between the Court and the counsel and attorneys who appear before it. I cannot let this issue rest here and the question whether Mr Korkie acted intentionally or negligently is a matter for determination by another forum at a later time. I am, therefore, forwarding a copy of this judgment to the relevant Bar Council with a request that they consider my remarks and decide what further action, if any, would be appropriate.

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JUDGE Y EBRAHIM 23 MARCH 2009

^{S v Sisilana & Ano.SEN}

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