Case Law

REPUBLIC OF SOUTH AFRICA

          IN THE HIGH COURT OF SOUTH AFRICA

          WESTERN CAPE DIVISION, CAPE TOWN

     

                                                                                            Case No: A79/2011

In the matter between:

JEROME EARL KING                                                                 APPELLANT

and

THE STATE                                                                                      RESPONDENT

JUDGMENT DELIVERED ON 22 AUGUST 2014

 

GOLIATH, J.:

[1]        On 26 October 2010 the appellant, Mr Jerome Earl King, was convicted of murder in the Regional Court Bellville. He was subsequently sentenced to ten years imprisonment on 9 December 2010. The appellant applied for leave to appeal against the conviction and sentence, but the regional magistrate granted leave to appeal against sentence only. On 13 May 2011 Dlodlo, J and Olivier, AJ dismissed the appeal against sentence.

[2]        The appellant thereafter proceeded to file an application for condonation in terms of Section 309C of the Criminal Procedure Act 51 of 1977 and for leave to appeal against his conviction, which was dismissed by Samela, J and Henney, J on 12 March 2012. This was followed by an application for leave to appeal the Court’s refusal to grant the s 309 C petition, which was dismissed on 13 February 2013. The appellant thereafter applied to the Supreme Court of Appeal that the order of 13 February 2013 be set aside. On 21 May 2013 the Supreme Court of Appeal ordered that leave be granted to the appellant to appeal to the Full Court of this Division against his conviction.

[3]        The murder charge arose from an incident which occurred on 8 January 2007 at 01h00 when the appellant, who was officially on duty as a member of the South African Police Force, shot and fatally wounded Benito James, an eighteen year old male. It is common cause that the deceased died as a result of a single gunshot wound to the head.

[4]        The appellant and his colleague Constable Quma responded to a complaint of a housebreaking that was taking place at the Bonteheuwel Post Office. The appellant testified that on the fateful day he and Quma arrived at the scene where they immediately apprehended a suspect who was standing at the door.  He ordered the suspect to lie down and instructed Quma to guard him while he proceeded towards the Post Office. He observed a small broken window, opened it, and in a bended position looked through it inside the Post Office. He observed a male trying to hide behind the counter at the back of the Post Office. This was the deceased.

[5]        The appellant verbally warned the deceased to come out, but he failed to respond. He was bobbing or moving up and down behind the counter. He then proceeded to fire a warning shot into the roof of the Post Office. The deceased still refused to comply. After firing the warning shot he observed another suspect running towards the back of the Post Office, in the direction of the deceased. He kept the deceased under observation and saw that he was still moving behind the counter. He reacted by firing two successive shots in the direction of the deceased, but in an upward direction. The suspect collapsed and he noticed that he was bleeding. He asked Quma to call for an ambulance. He then saw the security guard, Mr Laykers, on his right hand side, who informed him that he had the keys to the premises. He waited for back up and entered the premises with Sergeant Van Der Heever and Mr Laykers. The deceased was lying on the floor surrounded by blood. A knife was found on the deceased.

[6]        The State called Constable Quma and the security guard Mr Laykers who were in close proximity to the scene. Constable Quma confirmed that she accompanied the appellant to investigate the housebreaking complaint at the Post Office. On their arrival they apprehended a suspect, and the appellant instructed her to guard him. The suspect was instructed to lie on his stomach on the ground. She was in a standing position and pointed her firearm at the suspect. The appellant proceeded to a broken window and she heard him speak loudly in Afrikaans, which she did not understand. Thereafter she heard three shots. After the shooting incident they waited for the manager and supervisor to arrive, who opened the premises. The suspect she guarded was arrested at the scene and put into a van. She also contacted the ambulance and later observed the deceased lying on the floor inside the Post Office. She confirmed that a second suspect was also found inside the Post Office.

[7]        During cross-examination she explained that she had heard the appellant shout, and then she heard the first shot, and after a minute two successive shots were fired. She confirmed that she was standing on the left front side of the Post Office, where she was pointing her firearm at the suspect while guarding him. She subsequently entered the premises after the shooting incident where she saw the deceased lying on his back on the floor. She confirmed that she saw two suspects inside the Post Office, of which one was subsequently arrested. It is common cause that she did not witness the actual shooting.

[8]        Mr Laykers was posted as a security guard inside the Post Office because of the broken window. He testified that he was on duty this particular night after the Post Office was broken into during the weekend. While inside the Post Office he observed four persons outside who subsequently left. He decided to report the incident to the Metro Police. At approximately one o’clock the morning he observed a group of four or five people outside. From his testimony it is evident that he initially switched the lights inside the Post Office off, but later saw it was switched on by the intruders who had returned to the building. According to him two intruders went inside, and two stayed outside.

[9]        Laykers testified that he subsequently reported the matter to the police who arrived shortly thereafter. The lights inside the Post Office were on when the police arrived. The appellant and a female colleague arrived, and the appellant moved towards the broken window. He heard one shot went off. He stated that after the first shot was fired, he saw the female police officer lying flat on her stomach. There was another suspect also lying on his stomach at the same time. Thereafter another shot was fired. At some stage the appellant shouted “Julle kom uit daar” and a third shot was fired. The suspects refused to surrender. He informed the appellant not to shoot since he had the keys to the premises. He testified that at the time the second and third shots were fired he observed someone standing on the safe.  After the second shot was fired the man fell off the safe. After the shooting he opened the Post Office.  The appellant asked him to provide backup and the two of them entered the Post Office, where they found the deceased lying on the floor.

[10]      During cross-examination he conceded that he saw the suspects inside the Post Office. He explained that the second and third shots were not fired in quick succession. The appellant first shouted, and a shot was fired. He shouted again and another shot was fired.

[11]      The State also called various police officers who were involved in the investigation of the case. Inspector Lombard compiled a photo album and sketch plan of the scene on the day of the incident. He took the photographs of various points pointed out to him by the appellant. He also collected three empty cartridges at the scene. He estimated the distance from the window where the appellant fired the shot, to the safe behind the counter to be approximately fifteen metres. Inspector Smit testified that when he arrived at the scene of the shooting incident on 8 January 2007 he observed one suspect on the floor, and another injured person. He confiscated the gun of the appellant.

[12]      Captain Blumerus is a ballistic expert who attended to the crime scene three days after the incident to do further investigations. He observed two marks in the counter area, and two marks at the top of the safe which, according to him were caused by gunshots. He expressed the view that the trajectory of the shots fired was from the window, through the counter, against the wall above the safe. He also indicated that it appeared to him that the shots were fired from a lower position, aimed at a higher position. He examined the gun of the appellant and confirmed that three shots were fired from his gun, and that the three spent cartridges were fired from the same gun. He took a set of photographs which were handed in as an exhibit.

[13]      Captain Joubert, a forensic crime scene investigator, visited the scene of the shooting incident two years later on 21 July 2009. With the assistance of Blumerus he compiled a 3-D presentation of the crime scene indicating the bullet trajectory upwards from the window, through the mesh area on top of the counter, to the wall behind the counter. He expressed the view that the deceased must have been on top of the safe, possibly in a bent position at the time he was shot.

[14]      Lieutenant Colonel Johannes Kok re-examined the scene on 21 July 2009. He also concluded that the deceased must have been on top of the safe when he was shot. He indicated that the deceased could not have been standing on the floor since the bullet trajectory is higher than the height of the deceased. He based his opinion on photos of the incident presented to him two years after the incident.

[15]      The regional magistrate evaluated the evidence and found that the key witness, Mr Laykers, made a good impression as a single witness, and was credible and reliable regarding his version of events. Furthermore, that on the probabilities, his evidence was supported by the police witnesses. The court rejected the version of the appellant as improbable, and found that the appellant should be convicted of murder on his own version. From the judgment it is apparent that the appellant was found guilty of murder on the basis of dolus eventualis.

[16]      The appellant attacks the conviction on the basis that the evidence does not sustain a conviction of murder. It is contended that the regional magistrate misdirected himself as to the relevant elements to establish dolus eventualis. Furthermore, that the evidence of Mr Laykers, who was a single witness should have been treated with the utmost caution.  The regional magistrate erred in accepting it uncritically. The State on the other hand contends that the conviction is in order and that the elements of dolus eventualis had been complied with.

[17]      It is trite that in determining the guilt or innocence of an accused all the evidence must be taken into account. The court must assess whether in the light of the inherent strengths, weaknesses, probabilities and improbabilities on both sides the balance “weighs” so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt (S v Chabalala 2003 (1) SACR 134 (SCA) para 15; S v M 2006 (1) SACR 135 (SCA) para 189).

[18]      In my view there are four issues that required careful consideration by the regional magistrate. The first is the position of Laykers at the time of the shooting. He indicated that he came running from someone’s front yard when he heard the first shot. He testified that after the first shot was fired he observed Quma and a suspect lying on the floor. This evidence is contradicted by Quma who stated that she was standing at all times, whilst pointing a firearm at the suspect who was lying on the floor.

[19]      Laykers indicated that he was on the corner of the Post Office when the second shot went off. This was the only time he could see through the window. In his evidence in chief he stated that after the second shot was fired the man fell of the safe. There appears to be a contradiction in his version since it would not have been possible to be on the corner near the window of the Post Office and see the deceased at that stage. He indicated that there was a wall on the corner, which meant that he could not see inside the building when the second shot was fired. He testified that he was next to the appellant when the third shot was fired. It appears that the version of Laykers is that he saw the deceased fall after the second shot, which was the only time he looked through the window. However, he also indicated that he was next to the appellant on the left side of the Post Office next to the window when the third shot was fired.

[20]      When asked if he could see where the appellant was aiming his firearm he stated “I didn’t concentrate which shot went where” and “my mind wasn’t even there, at that time”. It appears that when the second shot was fired, he was on the corner at the wall and could not see inside the building. He was only next to the appellant when the third shot was fired. However, if he was on the corner at the time the second shot was fired, it is unlikely that he actually saw the deceased on the safe at the time.

[21]      The sequence of the verbal warning(s) and shots fired by the appellant is the second aspect which required careful consideration of the Magistrate. During cross-examination he states that “after the first shot, then the accused said, like he was shouting to the inside of the Post Office, you must come out there”. However, during cross-examination Laykers stated that a verbal warning was given to the persons inside after the first shot was fired. In response to a question from the court he repeats the statement that the warning was given after the first shot was fired. However, during his evidence in chief he clearly stated that:

“the shot went off, and then there was another shot after that, went off, but then the accused started shouting from the outside to the inside “julle kom uit daar, kom uit” and then another shot went off (p 107 line 5-10)”.

Quma on the other hand, testified that the appellant shouted loudly in Afrikaans before the first shot was fired. It is therefore evident that Laykers initially testified that a warning was issued only after two shots had been fired and thereafter changed his version.

[22]      Laykers did not dispute that he stated the following in a statement he made shortly after the incident: “die beampte het toe hard en duidelik na binne geskree, staan vas en kom uit, hande in die lug. Die beampte het die woorde ‘n paar keer herhaal”. However, he indicated that the above warning was issued after the first shot was fired. The testimony of Laykers in court regarding the verbal warning does not correspond with parts of his written statement which refers to repeated warnings. His version also contradicts Quma’s evidence that the appellant spoke loudly to the suspects inside the building before the first warning shot was fired. In any event, Laykers is not consistent and contradicts himself by first stating that the verbal warning was issued after the first two shots and thereafter changing his version to state that the warning was issued after the first shot was fired. The court should therefore have exercised great caution in assessing his evidence on this aspect. In response to a question as to whether the second and third shots were fired in quick succession, he confirmed that the appellant verbally directed the suspect to come out, fired the second shot, issued another warning and fired a third shot. This is in line with the statement which refers to various warnings that was issued. 

[23]      The third aspect that required careful consideration was the evidence relating to the position of the deceased at the time of the shooting. The court concluded that the appellant must have seen the deceased on top of the safe, and deliberately directed the shot at the deceased. The appellant himself never testified that he saw the deceased on top of the safe, but conceded that it could have been possible that he was on top of the safe.

[24]      Laykers testified that he saw the deceased fall from the safe after the second shot at the time when he was still on the corner. Laykers indicated that the deceased fell after the second shot, but he joined the appellant at the window when the third shot was fired. He also estimated that the safe was quite near the window, at approximately one metre, contrary to the fifteen meters estimate of Inspector Lombard. Considering the configuration of the counter it is questionable whether Laykers or the appellant had an unobscured view of the safe from where they were standing at the window at the time of the incident. An examination of the scene shows that the Post Office counter had small openings and windows covered with burglar bars. The safe was behind one of the burglar barred windows, hence it cannot be said that Laykers or the appellant had a clear view of the safe.

[25]      Taking into account the configuration of the counter, the fact that the safe was behind the counter and the circumstances prevailing at the time it is indeed plausible that the appellant did not see the deceased on top of the safe. The appellant testified that he saw movement behind the counter and this prompted his reaction to fire warning shots when the suspect refused to surrender. The evidence of the police witnesses placing the deceased on top of the safe is purely based on speculation due to the bullet trajectory, assumptions based on the height of the deceased and possible blood that was never analysed. Based on the unreliable evidence of Laykers who is a single witness, it cannot be found beyond reasonable doubt that the deceased was in fact on top of the safe.

[26]      Considering the unsatisfactory features in the evidence of Mr Laykers it is clear that the court a quo erred in accepting his evidence as credible and reliable in all material respects.  Furthermore, the refusal of the magistrate to admit the written statement of Laykers on spurious grounds created fertile ground for prejudice to the appellant. The magistrate ruled that it was not necessary to hand in the statement and consequently found the evidence of Laykers to be credible and reliable. Had the court a quo followed a proper approach in respect of the admissibility of the statement, it could have altered the court’s view regarding the credibility findings relating to Mr Laykers.

[27]      The final and most important aspect to be considered is whether the appellant acted with dolus eventualus when he caused the death of the deceased. The test for dolus eventualis is twofold namely:

(i)         whether the appellant subjectively foresaw the possibility of the deceased being killed by one of the bullets.

            (ii)        reconciled himself with that possibility.

(See: S v Sigwahla 1967 (4) SA 566 (A) at 570 B-E; S v Humphreys 2013 (2) SACR 1 (SCA) at 8 a-b).

[28]      The test for intention is subjective and not objective. (S v Van Wyk 1992 (1) SACR 147 (Nm) at 161 a-b). The fundamental question is not whether the appellant foresaw that the consequences would possibly follow, but whether in actual fact he reconciled himself with the possibility that it would follow.  The enquiry is therefore whether, in view of the circumstances of the case, there is any reason to conclude that the appellant did in fact subjectively foresee the possibility that his actions would result in the death of the deceased, and nevertheless reconciled himself with such possibility. (S v Dube 1972 (4) SA 515 at 520 G-H; S v Nhlapo 1981 (2) SA 744 at 750 H – 751 C; S v Shaik and Others 1983 (4) SA 57 at 62 A-B; S v Makgatho 2013 (2) SACR 13 at para 10; 11). The subjective foresight, like any other factual issue, may be proved by inferential reasoning. (S v Van Wyk (supra) at 164 d-h; S v Sigwahla (supra) at 570 E; S v Humphreys (supra) at para 13).

[29]      Counsel for the appellant correctly pointed out that the Magistrate overlooked the critical second element of dolus eventualis, namely reconciliation with the foreseen possibility. The Magistrate consequently failed to conduct an enquiry into the existence of this element. The second element is sometimes described as “recklessness” such as in this particular case where three shots were fired by the appellant. However, in S v Humphreys (supra) at para 17 the Court stated that this is not what the second element entail but rather:

“whether the appellant took the consequences that he foresaw into the bargain; whether it can be inferred that it was immaterial to him whether these consequences would flow from his actions. Conversely stated, the principle is that if it can reasonably be inferred that the appellant may have thought that the possible [consequences] he subjectively foresaw would not actually occur, the second element of dolus eventualis would not have been established”.

[30]      The appellant and Quma were called to a notoriously dangerous area after a report was made by Laykers of criminal activity at the Bonteheuwel Post Office. Laykers testified that he observed four to five suspects inside the Post Office and reported same to the police. The appellant and Quma were merely responding to the call in the execution of their duties as police officers. The evidence of Laykers and Quma clearly establish that the appellant was on high alert when he arrived at the scene. One suspect was immediately apprehended and held under guard by Quma. The appellant was focussing on the movement of other suspects, while his colleague was guarding another. Appellant himself immediately drew his firearm and approached the broken window, whilst pointing his gun inside the premises. 

[31]      On appellant’s version he saw movement behind the counter, which is partially obscured by windows covered with mesh or burglar bars. He fired a warning shot to no avail. The suspect continued to move and still refused to surrender. He then fired two more shots. The trajectory of the bullets in an upward position from the window to the wall is not in dispute. The appellant testified that he did not see the deceased on top of the safe, and considered it safe to fire the shots in an upward direction towards the roof.

[32]      Taking into account the circumstances of this case, where the appellant was faced with an unknown number of suspects, one under guard by his colleague; a moving scene where one suspect is seen inside the building, followed by a second suspect; a failure to respond to verbal warnings and a refusal to surrender after the first warning shot, it cannot in my opinion, be found beyond reasonable doubt that the appellant fired the second and third shots with the intention to kill the deceased. He was on high alert, concerned about his colleagues safety, as well as his own due to the uncertainty as to what was transpiring inside, and whether the suspects were armed or not. This case is clearly distinguishable from S v Makgatho, (supra) where the accused discharged his firearm twice in a tavern where there had been a number of people present.

[33]      In this case the appellant was merely performing his duty as a police officer and attended a crime scene in a notoriously dangerous area.  According to the appellant the purpose of firing the shots in an upward direction was to warn the suspects, and avoid the possibility of harming someone inside the Post Office. He acted reasonably in his attempt to apprehend suspects who had unlawfully broken into the Post Office. In my view there is a reasonable possibility that the appellant did not subjectively foresee that a suspect would be killed as a result of the precautionary measures he took when firing the warning shots in an upward direction. It also cannot be found beyond reasonable doubt that the appellant subjectively accepted that by taking those precautionary measures when firing the warning shots, that the deceased would be fatally wounded in the process. The requirements for dolus eventualis were clearly not established. The onus is on the State to prove all the material elements of an offence beyond a reasonable doubt. In the circumstances I am satisfied that the State had failed to prove its case against the appellant.

[34]      In the result I propose that the following order be made:

(1)        The appeal against appellant’s conviction succeeds.

(2)        The conviction on the charge of murder and the resultant sentence are set aside.

(3)        The orders of the regional magistrate are set aside and substituted with the following order:

            “The accused is found not guilty and discharged.”

___________________

GOLIATH, J

Judge of the High Court

I agree.

___________________                                                      

MANTAME, J

Judge of the High Court

I agree. It is so ordered:

___________________

BLIGNAULT, J

Judge of the High Court

REPUBLIC OF SOUTH AFRICA

                                                                

                          IN THE NORTH GAUTENG HIGH COURT, PRETORIA

                                              HELD INTHE DELMAS CIRCUIT

                                                                                            CASE NO: CC31/13

(1)                REPORTABLE: YES / NO (2)                OF INTEREST TO OTHER JUDGES: YES/NO (3)                REVISED.          ……………………..                     ………………………...                    DATE                                           SIGNATURE

 

In the matter between:

THE STATE

Vs

THABISO PRINCE MONTSHO

  ___________________________________________________________________

                                                         JUDGMENT

THULARE AJ

[1] The accused, a 27 year old male, is charged with one count of murder and one count of kidnapping. He pleaded guilty to both charges. The State did not accept the plea that the murder was not planned or premeditated.

[2] It is common cause that the accused was in an intimate relationship with the maternal aunt of the deceased and that she terminated that relationship contemporaneous with the developments leading up to the charges against the accused. The accused did not accept that the relationship has irretrievably broken down. He still harboured hopes that that relationship could be restored. The accused and the family of the deceased both lived in Wattville, in the magisterial district of Benoni. The deceased and his mother lived together with her younger sister, the accused’s erstwhile girlfriend, at the same address.

[3] It is common cause that on the afternoon of 11 August 2012, at around 17H00 the accused came and removed the deceased, Tshegofatso Moraswi, at that time a 3 year old boy-child who was to turn four years old the following month, from the street in front of their home where the deceased was playing with his twin brother and a friend, pushing old tyres along the street; that he carried the child for some distance, then walked with away and took the child to Wattville Dam, also known as Dalpark Dam, where he stabbed the child several times with a knife, with the intention to kill the child, and that he killed the child and then fled the scene leaving the deceased there at the dam.

[4] The evidence shows that Albert Basi, a 16 year old youth was at the corner of Padi and Poto street, not far from where the three young infants were playing the tyre game. Whilst there, he saw the accused at that corner. He noted that the accused was keeping observation. He knew the young children from sight but did not know their names, and also knew that the accused had an intimate relationship with a relative of the deceased. He saw the children playing their tyre game. It came as no surprise to him when the accused called the young boy to him, neither was it strange to him when the accused first carried the child and later walked away with the child. In his mind, they were on their way to the shops for the accused to spoil the child with some gifts.

He reported what he saw only later that evening when he heard that the child was missing. The accused had walked with the child to the direction of Wattville Dam. The evidence suggests that it is amongst others from the reports of Basi that the community of Wattville caught the accused, and assaulted him, before he was handed over to the police.

[5] Maputle Jeffrey Tlaka is a Captain in the SAPS, stationed in Etwatwa, who was asked by the Actonville SAPS to oversee a pointing out, which was done by the accused. When explained his right to legal representation, the accused had indicated that he does not need legal representation for purposes of the pointing out, although he may require legal representation in future. When explained that what he says will be noted down and that photos will also be taken, which may be used later as evidence against him during a subsequent trial, he indicated that he understood and when asked whether he still wished to make the pointing-out, he replied in the affirmative. He indicated that he was not assaulted, threatened or influenced by any person to make the pointing-out. When Captain Tlaka observed the bruises on his back, the accused told him that the bruises were as a result of the assault by the community members when they arrested him, before the police arrived.

[6] The accused, freely and voluntarily took Captain Tlaka, the photographer and other back-up police officers to the pointing-out scene. The accused directed Captain Tlaka from Benoni SAPS station through a number of streets in Wattville, leading them out of the squatter settlement towards the dam. At the dam the accused took them into the Dalpark area where he then asked them to stop . The accused walked them for about 300m and pointed at a wet and muddy area and said that is where he killed and left the small child, which he carried away from Poto street in Wattville, whereafter he threw away the knife with which the child was stabbed, and fled the scene. Photos which were taken, were handed in as exhibits.

Captain Tlaka was not cross-examined at all.

[7] The accused version is that the maternal aunt of the deceased was his girlfriend, and that her parents did not approve of their relationship. Arising out of a dispute which arose between her and her parents, she left her parental home and came to stay with him. He and his parents accepted her for she was pregnant with his child. The first attempt of reconciliation between her and her parents, in his room which he shared with her failed, but later she reconciled with her parents and moved back home. From then on, his attempts to meet with her were thwarted by her relatives and he was prevented from seeing her. Even an attempt through her friend to get to know her well-being, or see her, failed. For a few months he went about hurting, attempting to get to see and reconcile with her and or her parents, which attempts were always met with contemptuous disregard. Attempts by his parents to settle the issues between him and her family also failed.

[8] On 11 August 2012 he attended a traditional ceremony as he is a traditional healer. Whilst there, he shared his frustrations and hurt with other traditional healers and took a decision to join them dance as part of his emotional healing. He did not have his traditional regalia with him and decided to go home to fetch it, which he did.

[9] When he left home, he had with him a sports bag, containing his regalia as a traditional healer, which included his kangas, blanket, and beads to which a knife is attached. Carrying his sports bag, he decided to go first via his girlfriend’s home in yet another attempt to reconcile with her and her family. He knocked and received no answer.

[10] As he left the yard, he noticed a group of children playing in the street in front of that yard, amongst others was the deceased whom he knew as one of the twin boy children of Jabulile, the girlfriend’s elder sister. He picked up the child and does not know why he did so. He walked away with the child not knowing where he was going. He did not talk to the child, neither did the child talk to him throughout their 30 minutes walk from Poto street, through Silver Town and Tamboville, to the dam, in Wattville.

[11] He just walked aimlessly carrying the child and when he came back to his senses he was at the dam. He heard voices in his head, but could not hear what the voices were saying. However, it is not the voices that told him to kill the child. He does not know if he put the child down or whether the child dropped from his hold. He undressed the child, removing all the clothing and leaving the child naked. He opened his sports bag, searched for and took out the beads, removed the knife therefrom and started stabbing the child. He does not know how many times but he accepts it was 12 times. When he left the child, the child was still crying and it was dark. He walked away. He threw the child’s clothing amongst the reeds at the dam, some distance away from the child. He also threw away the blood-stained knife away.

[12] He ran home. In his room he changed the blood-soaked clothing which he had on and placed them in a plastic bag. He moved around the structures on the yard to the backyard where he hid the plastic bag containing his blood-soaked clothing.

[13] The parents of the deceased came to his house, looking for the child. He denied any knowledge of the whereabouts of the child. He was confronted with information that he was the person last seen walking away with the child. He denied this. He was afraid of the parents and the community. He was taken away to the child’s home. The Police were called to the house. They asked him about the whereabouts of the child and he denied any knowledge and denied walking away with the child. He later admitted to the Police that he took the child away but did not tell them that the child was injured. He did not tell the Police everything that happened.

[14] Upon searching his parental home, his blood-stained clothing was discovered where he had hid them inside the plastic bag behind the house. The child was searched for but was never found that Saturday. It was only the following day, the Sunday, on further searches by the community and the Police, that the body of the child was discovered at the dam. His version is that he could not take the Police or the community to the child as he did not remember where he had left the child.

[15] He did not plan what happened. He cannot explain why he did what he did. He never had any problems with the biological parents of the child. He went to school with them. He asked for forgiveness for what he did.

[16] After the testimony of the accused the State applied to re-open its case, which application was not opposed and was granted.

[17] Jacobus Cornelius Coetzee (Coetzee) is a registered Clinical Psychologist who runs an independent practice but also renders his services to Weskoppies Hospital in clinical psychology and forensic psychological assessment. He holds a Bachelor’s degree in Theology and Psychology, an Honours degree in Psychology and a Master’s degree in clinical psychology. He is registered with the Health Professions Council of South Africa. He is a member of the South African Medico Legal Society as well as the International Association for Forensic Mental Health Services.

[18] He evaluated the accused at the request of the court whilst the accused was under observation at Weskoppies Hospital in Pretoria.

[19] In his psychological interview with the accused, the accused reported to him the voices that scream at him usually at night, and throw him with birds and chickens. The voices tell him to take a cable wire to hang himself and sometimes cut himself with a razor or to fight people.

[20] Coetzee conducted a psychometric test on the accused.

      20.1 Under the personality assessment inventory (PAI), which test provides information relevant for clinical diagnosis, treatment planning and screening for psychypathology and covers constructs most relevant to a broad-based assessment of mental disorders, the accused answered the questions in a way to create a distorted profile. His interpretation of the marked elevation on the negative impression scale is that the accused made a deliberate attempt to create an overly negative impression of himself. Coetzee holds the view that this is indicative of an attempt to malinger psychiatric symptoms.

      20.2 Under structured inventory of malingered symptomatology (SIMS), which test is a multi-axial, self-administered screening measure for detection of malingering in clinical and forensic settings, the accused scored positive for attempted malingering for all of the scales on psychosis, neurologic impairment, amnestic disorders, low intelligence and affective disorders. Coetzee interprets this as that the accused endorsed a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders, this may indicate an attempt to malinger these symptoms.

      20.3 Under the inventory of legal knowledge (ILK), which is a test designed to assist the forensic examiner in assessing reponse styles of defendants undergoing evaluations of their competency to stand trial and is a measure of a defendant’s approach to inquiries about his legal knowledge, the accused obtained a score of 50, which score falls in the upper end of the normal range. Coetzee interprets this as that the test results support the fact that the accused did not attempt to feign limitations in his ability to understand or participate in the legal process.

[21] Coetzee’s opinion is that the accused does not currently suffer from any clinical psychiatric disorders and that at the time of the incident he did not suffer from any clinical psychiatric disorder. Coetzee’s opinion is that the accused shows antisocial and narcissistic personality traits. Coetzee is also of the opinion that the accused is currently malingering some psychiatric symptoms, specifically those in the psychotic disorder spectrum.

[22] Coetzee’s conclusion is that the accused is capable of understanding the court proceedings and can meaningfully contribute to his own defence, and that at the time of the commission of the offence, the accused was able to distinguish between right and wrong and was able to act in accordance with such understanding.

[23] Dr K Naidu, a State Psychiatrist and Dr PH De Wet, a Psychiatrist appointed by the Court, are both duly registered psychiatrists who compiled a joint report regarding the mental condition of the accused, which was handed in by agreement between the parties.

[24] Their examination consisted of clinical interviews with the accused and observation of his general behaviour in the ward. He was physically examined. A summary of court proceedings was made available to them, a psychosocial report was complied and he was psychologically evaluated.

[25] The two Psychiatrists found no psychiatric diagnosis. The diagnosis they found was malingering. They both noted his previous medical and psychiatric history.

[26] Their opinion is that the accused is capable of understanding court proceedings and is able to contribute meaningfully to his defence.

[27] Their opinion is also that at the time of the alleged offences, the accused did not suffer from a mental disorder or mental defect that affected his ability to distinguish between the rightful or wrongful nature of his deeds. A mental disorder or mental defect did not affect his ability to act in accordance with the said appreciation of the rightful or wrongful nature of his deeds.

[28] The only issue between the State and the accused is whether the murder was planned or premeditated.

[29] The joint report of the two Psychiatrists, Dr Naidu and Dr De Wet, was admitted by the accused. The only criticism that the court has, of their report, is that they do not set out their training, competency, skill and/or experience, to enable the court itself to conclude that they are persons qualified to be experts in their field. Moreover, they do not indicate the nature of the clinical interviews, other observations and examinations they carried out as well as the facts they found, upon which their diagnosis is based, to enable the court to draw its own conclusions. In the light of their being qualified as experts not being in dispute, for purposes of this judgment, their titles and their declaration that they are duly registered psychiatrists will suffice to meet their qualification as experts to make a psychiatric diagnosis. In the same breath, I accept their opinion as the opinion of the court and find that no psychiatric diagnosis was made in respect of the accused, and that what was diagnosed was malingering.

[30] The court finds that the accused is capable of understanding court proceedings and is able to contribute meaningfully to his defence. The court further finds that at the time of the alleged offences the accused did not suffer from a mental disorder or mental defect that affected his ability to distinguish between the rightful or wrongful nature of his deeds. A mental disorder or mental defect did not affect his ability to act in accordance with the said appreciation of the rightful or wrongful nature of his deeds.

[31] Having regard to the evidence of Coetzee, the court finds that the version of the accused that he heard voices is beyond reasonable doubt false. With specific reference to the psychometric tests conducted on the accused and with specific reference to the personality assessment inventory, the court finds that this is part of the accused’s deliberate attempt to create an overly negative impression of himself in an attempt to malinger psychiatric symptoms. The court further finds that the accused endorsed a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders. The court also finds that the accused falls in the upper end of the normal scale and that the accused did not attempt to feign limitations in his ability to understand or participate in the legal process.

[32] The court accepts the opinion of Coetzee, and finds that the accused has anti-social and narcissistic personality traits. The court further finds, in favour of the accused, that the murder was not planned.

[33] Section 51(1) of the Criminal Law Amendment Act, 1997 ( Act No. 105 of 1997) provides as follows:

“Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life.”

Part I of Schedule 2 referred to provides as follows:

“Murder, when –

(a)   It was planned or premeditated; …”

[34] The terms “planned” or “premeditated” are not defined in the Act. The Cape Provincial Division, through Bonzalek J writing for the Full Bench, pronounced itself as follows on this aspect in S v Raath 2009(2) SACR 46 (C) at paragraph [16] c-g:

“The concept of a planned or premeditated murder is not statutorily defined. We were not referred to, and nor was I able to find, any authoritative pronouncement in our case law concerning this concept. By and large it would seem that the question of whether a murder was planned or premeditated has been dealt with by the court on a casuistic basis. The Concise Oxford English Dictionary 10 ed, revised, gives the meaning of premeditate as ‘to think out or plan beforehand’ whilst ‘to plan’ is given as meaning ‘to decide on, arrange in advance, make preparations for an anticipated event or time’. Clearly the concept suggests a deliberate weighing-up of the proposed criminal conduct as opposed to the commission of the crime on the spur of the moment or in unexpected circumstances. There is, however, a broad continuum between the two poles of a murder committed in the heat of the moment and a murder which may have been conceived and planned over months or even years before its execution. In my view only an examination of all the circumstances surrounding any particular murder, including not least the accused’s state of mind, will allow one to arrive at a conclusion as to whether a particular murder is ‘planned or premeditated’. In such an evaluation the period of time between the accused forming the intent to commit the murder and carrying out this intention is obviously of cardinal importance but, equally, does not at some arbitrary point, provide a ready-made answer to the question of whether the murder was ‘planned or premeditated’.

[35] Clearly, the Full Bench approached “planned or premeditated” as a concept, meaning it as one idea. It appears in my view, with respect, that the learned Judges accepted the word “or” between the two words as meant to introduce a synonym or explanation of a preceding word.

[36] In my view, the two words, “planned”  and  “premeditated”‘ are two different concepts representing two different ideas. “Premeditated” refers to something done deliberately after rationally considering the timing or method of so doing, calculated to increase the likelihood of success, or to evade detection or apprehension. On the other hand, “planned” refers to a scheme, design or method of acting, doing, proceeding or making, which is developed in advance as a process, calculated to optimally achieve a goal. Such process has general features which include:

1. The identification of the goal to be achieved.

2. The allocation of time to be spend.

3. The establishment of relationships necessary to execute.

4. The formulation of strategies to achieve the goal.

5. Arrangement or creation of the means or resources required to achieve the goal and

6 Directing, implementing and monitoring the process.

In my view, the word “or” between “planned” and “premeditated” in Part I of Schedule 2 introduces the second of the two alternative concepts. In my view, the use of the word “or” indicates that the Legislature did not favour a composite description of the circumstances, to meet the test.

[37] There is no evidence to suggest that the accused conceived an intention or plan to kill the deceased before that fateful afternoon, or specifically before he met the deceased in the street. From the accused’s own version, it is clear that he was angered by the actions of the blood relations of his girlfriend, in particular their disapproval of his relationship with their daughter and their actions in a quest to bring that relationship to an end. His anger seems to have been fuelled by Tshepiso, girlfriend, ending their relationship on Friday the 10^th August 2012, the day before he killed the deceased, on the accused’s own version as related to Coetzee.

[38] The court accepts the evidence of Coetzee and finds that the accused’s identity is one of ego-centrism with a self-esteem derived from personal gain, power or pleasure and that his goal-setting is based on personal gratification. He has a lack of concern for feelings, needs or suffering of others. Exploitation is his primary means of relating to others, including coercion and use of dominance. The court also accepts that the accused has a personality trait of grandiosity with feelings of entitlement, either overt or covert self-centredness, firmly holding the belief that he is better than others and is condescending towards others and is attention seeking with excessive attempts to attract and be the focus of the attention of others in admiration seeking.

The court finds that the version of the accused that his possession of the knife that afternoon in Poto street, Wattville, was simply a co-incidence, is highly improbable. So is his version that the reason for him to be in that street, where Tshepiso’s parental home is situated, was an attempt to reconcile. Both are beyond reasonable doubt false, in my view.

[39] When the accused saw the 3 year old boy pushing a tyre playing with his twin brother and friends, he conceived the idea of killing the infant as a sign of his power to satisfy his self-esteem. The killing was an act calculated to force Tshepiso’s relatives towards benevolence and acceptance of his relationship with her, thus seeking their attention. It was also an act of revenge to Tshepiso for ending the relationship, and her family for their disapproval of him as a suitable partner for her.

[40] The deceased and his twin brother were playing without any adult supervision from a relative. The accused stood by the corner, doing an observation. The likelihood is that he had hoped to see and meet Tshepiso. He had sufficient opportunity, as he stood and observed, and as he noted the children playing, to ponder. The accused did not take any child and stab him or her, there and then in a moment of rage or impulsively in a spur of a moment. He specifically called the child of Jabulile, the elder sister of Tshepiso. When the accused carried the child away, he had rationally considered the timing and circumstances as suitable for the removal of the child to an isolated spot. The 30 minute walk to an isolated dam outside the township increased the likelihood of him succeeding to kill the child without any interference, detection or apprehension. The brutal killing of the child was an act of power, an act of dominance in the sense of having the last laugh in the whole episode, an act of personal gratification, an act of revenge, an act of hurting Tshepiso and her family, an act to influence control and manipulate Tshepiso and her family, an act of callousness, an act of hostility in response to the discipline which Tshepiso’s family tried to enforce. It was unnecessary. It was unnecessary to undress the child, with the attendant cold temperatures of the closing stages of the winter months in Gauteng, South Africa, especially the East Rand, at that time of the day, and month. Not only was it an act of lack of concern for feelings of the child and accused’s lack of guilt or conscience about the harmful effects of his aggressive actions. It was also an act of humiliation not only to the child, but also to his family.

[41] The court finds that the murder was premeditated.

My understanding of the decision in S v Malgas 2001(2) SA 1222 (SCA), as well as the decision in S v Khiba 1993(2) SACR 1 (A), in my view, having regard to the terminology therein employed, does not convey facile enough to me that the Supreme Court of Appeal itself interprets “premeditated” to be incapable of being understood as a concept on its own. I have not been referred to, nor self been able to trace any judgment where this question was specifically discussed.

[42] The accused is found guilty of the premeditated murder, as set out in count 1. He is also found guilty of kidnapping, as set out in count 2.

                                                      

                                                                             ……………………………………..

                                                                                         DM THULARE

                                                                     ACTING JUDGE OF THE HIGH COURT

                                                                  ON SENTENCE

[42] Section 51(3)(a) of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997 provides that:

“If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence that the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence: …”

[43] The approach to this provision was set out in S v Malgas 2001(2) SA 1222 (SCA) at 1233-1234 paragraph [18] by Marais JA as follows:

“The absence of any pertinent guidance from the Legislature by way of definition or otherwise as to what circumstances should rank as substantial and compelling or what should not, does not make the task any easier. That it has refrained from giving such guidance as was done in Minnesota from whence the concept of ‘substantial and compelling circumstances’ was derived is significant. It signals that it has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence. In doing so, they are required to regard the prescribed sentences as being generally appropriate for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so. A departure must be justified by reference to circumstances which can be seen to be substantial and compelling as contrasted with circumstances of little significance or of debatable validity or which reflect a purely personal preference unlikely to be shared by many.”

[44] In S v Dodo 2001(3) SA 382 (CC) at paragraph [11] The Constitutional Court, through Ackermann J, endorsed the interpretation of the words ‘substantial and compelling circumstances’ in s 51(3), and the detailed step-by-step procedure to be followed in applying the test to the actual sentencing situation. Ackermann J said at 393 B-D:

“The interpretation, as an overarching guideline, is one that this Court endorses as a practical method to be employed by all judicial officers faced with the application of s 51. It will no doubt be refined and particularised on a case by case basis, as the need arises. It steers an appropriate path, which the Legislature doubtless intended, respecting the Legislature’s decision to ensure that consistently heavier sentences are imposed in relation to the serious crimes covered by s 51 and at the same time promoting the ‘spirit, purport and objects of the Bill of Rights’”.

[45] In that step-by-step procedure, Marais J said at 1235 paragraph [25] from his letters B-G:

“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.”

[46] The totality of the evidence shows that the accused is swimming against the tide of the national agenda, which agenda seeks to confront the frontiers of violence against women, children, the differently able-bodied as well as older persons. In my view, the national agenda seeks to sweep these frontiers away and to deposit them onto the shoreline amongst the debris of our history where the stubborn monument of patriarchal chauvinism belongs, in the sea of a democratic and constitutional milieu.

[47] Two days after the commemoration of National Women’s Day, when the consciousness of celebrating women was still fresh in the memories of all South Africans who care to listen, the accused approached the home of his former girlfriend armed with a knife, seeking to revenge his grief and anger occasioned by being told that the girlfriend has lost love and affection for him.

[48] Accused had a history of domestic violence with his girlfriend. He was controlling and manipulative, according to her. She left the common home she shared with the accused after accused had assaulted her again, and this time whilst she was pregnant. Knowing that she was pregnant, he had assaulted her on her womb. She realised that the accused was a danger to her, and to her unborn child, and left the common home. When she arrived at her parental home, she bled from her private parts and ultimately lost the unborn child.

[49] Around the period of the commission of the offence, it is well known that the nation is already in dialogue, with logistical arrangements already being made and speakers arranged, at least now for more than ten years, in preparation for the 16 days of activism against women and child abuse, which starts two months thereafter, from 25 November to 10 December annually. It is around the time of the national engines of mobilisation to start roaring to run for the protection of children, that the accused removed a child from the care of its parent with the intention to kill him.

[50] There is no doubt that the killing of a defenceless child is a serious crime, which is prevalent in this country, and that society expects of the courts to deal decisively with offenders. The accused was undoubtedly in a position of trust in relation to the child. It may be so that the child also had in mind what Basi thought, to wit, that he is being taken to the shops to be spoilt with gifts by its uncle. Three year olds are known for their being talkative and speaking their minds. This explains why the wisdom of African ancestors is to remove children of that age for the bedroom of their parents to their grandmothers. It is highly unlikely, in my view, that the boy-child did not talk to the uncle. The probabilities favoured a conclusion that the accused must have said something to the child, which stirred the interest of the child so much so that it left to play. The probabilities favour a conclusion that what the accused said to the child settled the child and in trust and hope the child left with the accused without any resistance.

[51] The child must have been shocked, and felt betrayed, when the person he had trusted would protect him, started to stab him. A then 25 year old man stabbed a naked defenceless child 12 times. The child had been removed to an isolated area early evening where there was no chance of anyone coming to its rescue. At dusk, alone amongst the reeds, naked and brutally injured, a young life was painfully lost. Aspirations died. Dreams were lost. A chapter ended. The motive was revenge and jealousy, informed by antisocial behaviour and a narcissistic personality. The murder was premeditated.

[52] The accused pleaded guilty to the charge. He has a previous conviction of assault. It was not a serious assault such that it is even possible that the provisions of section 112(1)(a) of the Criminal Procedure’s Act 51 of 1977 were applied, having regard to the sentence imposed. He is 27 years of age. He worked as a traditional healer and earned approximately R7000-00 (seven thousand rands) a month.

[53] Counsel for the accused argued that the accused showed remorse. I am inclined to disagree. It is difficult, if not impossible, to detect any remorse on the side of the accused, as he appears to always shift the goal-posts away from a frank, candid and honest approach.

He initially denied any knowledge of the whereabouts of the child and only made admissions when confronted with evidence for which he could not provide a satisfactory answer.

When it was clear that there was evidence by eye-witnesses that he had left with the child, only then did he admit leaving with the child, but claimed he did not know where the child was.

When his blood- soaked clothing were found and the child was discovered, he made a pointing out, but malingered mental illness or mental disorder.

[54] The court also takes into account that the accused has an antisocial personality disorder and a narcissistic personality disorder. The evidence of Coetzee is that these disorders may be genetically transferred, but can also be acquired from the systems under which one grows up or from the society from which one emerges.

[55] The family set-up of the accused appears to be such that it allowed him to fail to conform to culturally normative ethical behaviour. His parents allowed him to remove a school girl from her parental home and bring her home to live with him in his outside room as husband and wife, whilst that girl was still at school, without at least any resistance or at most involving the parents of the girl child.

Sent by him, his elders reported a pregnancy of the girl-child to her parents, contrary to established indigenous practice and custom, in terms of which the parents of the boy-child are reported to, by the elders of the girl-child.

With the greatest of respect to the accused parents, the evidence suggests that they simply asked: “How high” when he said: “Jump”, instead of them being in authority over him.

The silence of the accused parents in the struggle of Tsepiso’s parents to have their daughter back at home and in school, and to have the accused reigned in, is too loud to be disregarded, as a contributory factor in the antisocial personality make-up of the accused.

It seems to me that the accused was so used to the absence of parental authority over him that he harboured a belief that he could do as he pleased with any child and/or any parent at any household. This in my view, informed his hostility and anger to the parents of Tshepiso when they stood their ground against his behaviour.

The court is inclined to find that the accused’s antisocial personality disorder and narcissistic personality disorder were nurtured and developed by the family from which he emerges.

In my view, the presence of the accused within the environment of his family constitutes a danger to society, unless and until there are programmes for interventions. As things stand, the accused is a danger to society.

[56] The right to life is sacred, basic to humanity itself and enjoying Constitutional protection. Children in this country are entitled to play in the streets, especially just in front of their parental home. They have a legitimate claim to play peacefully on the streets, to enjoy their youth, to run around and enjoy the peace and tranquillity of their homes and neighbourhoods without the fear, the apprehension and the insecurity which constantly diminishes the quality of their lives.

[57] The accused showed no respect for life. He prowled the streets, deceptively pretended to care for the child by lifting him up and carrying him away and then proceeded to kill him callously and brutally with a knife.

[58] Dealing with callous and brutal acts after victims were deceived by an accused and their rights were not respected, the Supreme Court of Appeal expressed itself as follows in S v Chapman 1997 (3) SA 341 (SCA) at 345 C-D:

“The Courts are under a duty to send a clear message to the accused, to other potential rapists and to the community: We are determined to protect equality, dignity and the freedom of all women, and we shall show no mercy to those who seek to invade those rights.

We communicate that message in this case …”

In this case before me, Tshepiso and her family in particular, the community of Wattville, as well as the society in general, have a right to be protected from a fearful life, fearing for their lives. This court must speak, as a protrusion of society, the language that society speaks, to wit: “Freedom for all.” Not freedom for some.

[59] In S v Khiba supra, Eksteen J, said the following after referring to decisions wherein the death sentences were imposed, at page 4 paragraph to page 5 paragraph c:

“These decisions seem to reflect the gravity with which this Court regards murderous attacks on victims in their own homes and more particularly isolated farms. Sentences of death have been confirmed not only when the victims were old and frail but also where they were ablebodied and strong. So, too, even where the intention was dolus eventualis, and where the appellants have been comparatively young, and even first offenders. The reasoning in these cases, as exemplified in the dictum from Shabalala’s case quoted above, is compelling and commends itself to any reasonable mind. The present case is but one more in this sad category. The deceased and his wife lived alone on their farm and had done so for 40 years. This must have been common knowledge in the area, and was certainly known to the appellant and his accessories who lived on neighbouring farms. Their plan of attack was premeditated and carefully laid, as was evidenced by their abortive foray on the Saturday evening. It was carried out with violent determination and persistence, and resulted in the death of the hapless deceased in his own farmyard while he was about his farming activities. …

On consideration of all these mitigating and aggravating factors the latter seem to me to far outweigh the former. Seen in the context of the recognised objects of punishment, the interests of society seem to me to demand that deterrence and retribution must outweigh considerations of reformation. I therefore share the view of the trial Judge that this is one of those exceptionally serious cases where the death sentence is imperatively called for and where it is the only proper sentence.”

These comments of the Supreme Court of Appeal, as regards the removal of children from their homes and/or playgrounds, taken to isolated areas and brutally abused and killed, generally by persons known to these children, are as relevant today as they were then, save for the form of sentence.

[60] Having regard to the evidence of Coetzee, accused is not the person who one can easily conclude that simply because of his youth, rehabilitation is a real prospect in the ordinary course, even after a long period of imprisonment.

[61] In my view, it cannot be said that the circumstances in this case call for a departure from the prescribed sentence. After careful consideration of all relevant factors, the court is satisfied that the following represent a just, fair and informed pronouncement on sentence:

1.      On count 1, of premeditated murder, accused is sentenced to imprisonment for life.

2.      On count 2, of kidnapping, the accused is sentenced to 8 (eight) years imprisonment.

The sentence on count 2 is to run concurrently with the sentence in count 1.

The accused is declared unfit to possess a firearm.

                                                                       

                                                                          ……………………………………………

                                                                                          DM THULARE

                                                                       ACTING JUDGE OF THE HIGH COURT

           

                                                                                                                           REPORTABLE                                                                                                                                                                         IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL

NORTH EASTERN CIRCUIT LOCAL DIVISION: MTUNZINI

                                                                                                        CASE NO. CC 69/2011

In the matter between:

THE STATE                                                                                                                        

versus

BHEKOKWAKHE EMMANUEL MATHE                                                       ACCUSED

_________________________________________________________________

JUDGMENT

________________________________________________________________

GORVEN J

[1]                    The accused was ultimately indicted on two counts and pleaded guilty to both. The counts were as follows:

4.         The attempted murder of Nkululeko Mzimela at or near KwaDlangezwa on 18 May 2010.

5.         The murder of Nomphumelelo Pretty Mbatha at or near the same place on that date.

[2]                    The accused tendered a written statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (the Act). The statement was accepted by the state and he was found guilty as charged based on that statement.

[3]                    Mr Ngobese, who represented the accused, then addressed on sentence. At a certain point it became clear that he would submit that a sentence of correctional supervision in terms of s 276(1)(h) of the Act would be appropriate. The matter was adjourned at the instance of the court, supported by both parties, for the purpose of obtaining a probation officer's report and one from the Correctional Services. This was because a presiding officer bears some responsibility to ensure that important information is placed before the court for the purpose of sentence, especially when a particular sentence is prescribed for the crime in question.[1] It was indicated that any evidence in mitigation or aggravation should be led on the adjourned date. A lengthy delay ensued as a result of the difficulty of finding a date suitable to both parties and the court.

[4]                    It is necessary to summarise part of the statement in terms of s 112(2) and to set out in full part of it. Since 1999 the accused and the deceased were in an intimate relationship. She was at high school and he was employed. He paid some ilobolo along with gifts, called izibizo. A girl child named Fezeka was born to them on 8 August 2005. The deceased attended the University of Zululand and the accused obtained employment at the Department of Correctional Services during January 2007. As part of his training, he attended college and on his return discovered that the deceased was conducting a love affair with a colleague of his named Mabuyakhulu. Because of this affair, the accused did not wish to work at the Correctional Centre which employed Mabuyakhulu but went to another Correctional Centre. During 2008 the accused attended several counselling sessions with a social worker at work. The deceased and her family were involved in some counselling sessions. The accused was emotionally depressed and at some stage thought of committing suicide and of killing Mabuyakhulu. He also consulted a psychologist. During May 2008 the deceased told the accused that she had terminated her love relationship with Mabuyakhulu. The accused was then transferred to the Empangeni Correctional Centre during October 2008 when he and the deceased began to plan for their wedding. However, during May 2009 the accused intercepted a text message from Mabuyakhulu on the deceased's cellphone, inviting her to visit him for a weekend. There was an argument between the two of them and the accused sought the intervention of that same social worker as a result. The deceased, however, convinced him that she had terminated her love affair with Mabuyakhulu. He registered for a degree at the University of Zululand so that they could both have academic qualifications. He was, at this time, accommodated at his workplace and the deceased was employed as an educator in the Msinga area but visited him during month ends and holidays.

[5]                    On 17 May 2010 he was told that the deceased had visited Mabuyakhulu during the weekends of 1 and 2 May and 15 and 16 May 2010. He had unsuccessfully attempted to contact the deceased telephonically during the latter weekend. He immediately phoned the deceased who told him that she wished to terminate her relationship with him. This affected him the whole night and, on 18 May 2010, he left his post two hours early at 04h00. He took public transport to the deceased's place of employment. He requested that she return with him and she asked for, and obtained, permission from the principal of the school where she taught to be excused from work for the day. They took public transport to Greytown, then to Kranskop, then to Stanger and then to Empangeni. En route to Empangeni, he told her that he would have to alight at the KwaDlangezwa crossroads to attend afternoon classes at the University of Zululand. He had noticed, on their way from Stanger, that the deceased was making and receiving text messages on her cellphone and suspected that she was communicating with Mabuyakhulu. He asked to borrow her cellphone on the pretext of wanting to make some calls, but she told him that her cellphone battery was flat. Despite this, she continued to communicate through text messages.

[6]                    The statement continues as follows:[2]

‘We reached the Kwa-Dlangezwa crossroads and the taxi stopped as I was alighting. At that stage I was carrying a baby belonging to one of the passengers in the taxi. I then gave the baby to its mother and soon after I had alighted three officers who are my colleagues at work emerged from the nearby trees. It was Bongani Eugen Mtsweni, Frankson Ryan Smith and Mr S.M Mhlongo. They pointed at me with firearms and demanded the service firearm which I had on my person. Whilst I was still trying to figure out what was going on, Mr Bongani Eugen Mtsweni (who is a close friend of Mabuyakhulu) advanced towards me and tried to grab the firearm from my possession. I retreated towards the back of the taxi and he opened fire.

I removed the firearm from my hip and shot back and he together with Mr Frankson Smith directed shots towards me. I also fired shots towards them and upon realising that I was missing them, and that I had already been shot at about two times, I tried to take cover and I noticed that the taxi in which I had been a passenger was beginning to drive off. I climbed on the rear windscreen and fell down. I arose and ran towards the taxi and climbed again. Shots continued to be fired towards me and the driver of the taxi stopped his taxi approximately 50 m from the place where he had initially stopped and came out of the taxi running for cover into the nearby bushes.

I then entered the taxi through the driver's door trying to take further cover and at that stage I was shot on my foot and legs and I realised that I was being killed. At that stage I was severely emotionally overwrought and began to shoot several times at the deceased who was sitting at the back seat of the taxi. I ordered passengers to bend down so that they do not get hurt and I shot at the deceased as I wanted to die with her since I was bleeding and the blood was all over my body so much so that I did not know which parts of my body had been injured.

At the time of shooting at the deceased I also missed her and shot at Nonkululeko Mzimela. The incident was happening very fast as my colleagues were firing shots at me and I then fell down from the taxi and dropped the firearm, raising my hands and ran towards the nearby bush. Mr Eugen Mtsweni gave chase after me still shooting towards me.

I then saw Mr Gumbi, who is also my colleague, who told me to stop running and I stopped and fell down. I regained my consciousness when I was at the Garden Clinic Hospital.

I wish to state that at the time when I was shooting at the deceased I was emotionally disintegrated but I was still able to differentiate or appreciate between right and wrong and I was able to act in accordance with such appreciation.

At the time of the shooting I intended to kill the deceased as I did not want to die alone and leave her with Mabuyakhulu.

I wish to state that I knew at the time that my conduct was unlawful and that I had no right to take the life of another person, Nompumelelo Pretty Mbatha.

I wish to state further that at the time when I shot at the deceased I foresaw the possibility that other passengers like Nonkululeko Mzimela, who was sitting, at the time, next to [the deceased] might be shot at and injured and/or killed as a result of my shooting, but I nevertheless continued with my conduct regardless of whether or not she would be shot dead and injured or killed.

I further wish to state that I realised at the time that my aforesaid conduct was unlawful.

When I was still in hospital I sent my mother and my aunts to go to the deceased’s family to apologise on my behalf and to state my willingness to take responsibility over the funeral expenses and also to offer a traditional apology goat… but those offers were turned down by the deceased's father even after some follow-up efforts from my side.

I admit that the shots fired by me directed to the deceased person caused the death of the deceased.

I am really sorry for what happened.’

[7]                    A report from the social worker whom he consulted from time to time was annexed to the statement. It states that she had two sessions with the accused on 23 and 27 January 2008, a session with the deceased on her own on 31 January 2008, a session with the accused and the deceased together on 31 January 2008 and a session with the deceased's family on 27 March 2008. It records the accused saying he was suicidal and that he was also considering shooting Mabuyakhulu. A request was accordingly made to place the accused in a position not requiring the use of a firearm. On 16 May 2008 the accused and the deceased confirmed that everything was back to normal, whereupon the accused was transferred back. The report further records a later communication from the accused requesting the intervention of the social worker because he had had a fight with the deceased. She encouraged the accused to deal with these issues without involving the social worker and he then reported that he had done so and that he was happy. The file became inactive and was closed on 22 October 2009.

[8]                    Both of the offences with which the accused was convicted attract sentences prescribed under s 51 read with Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the CLA). As regards the attempted murder count, the minimum sentence is five years. On the count of murder, the state accepted that the statement of the accused did not go so far as to show that the murder was planned or premeditated. As such, the minimum number of years’ imprisonment prescribed is 15 years.[3] A sentence less than the minimum prescribed can only be imposed if the court finds that substantial and compelling circumstances warrant a lesser sentence in terms of s 51(3) of the CLA.

[9]                    Counsel for the accused submitted that an appropriate sentence on both counts, taken together, would be one of correctional supervision in terms of s 276(1)(h) of the Act, coupled with a wholly suspended sentence of imprisonment and a compensation order on the murder count in favour of the family of the deceased. This would, of course, require a finding that substantial and compelling circumstances are present. In support of his submission that such substantial and compelling circumstances exist, counsel for the accused set out the personal circumstances of the accused and mitigating factors. These are as follows. He is a first offender. He is 31 years old. He is unmarried and has not been engaged in any further relationships. He has a child by the deceased to whom he will have to explain the incident. This child is cared for by and stays with the parents of the deceased. He does not contribute to her support but wishes to do so. He has not taken the initiative to do so in the interim, influenced by the fact that the family of the deceased has sued him for damages, including loss of support. He has not completed his studies because he has become demoralised by the incident. He has shown remorse by pleading guilty and attempting to apologise to the deceased’s family, pay for the funeral expenses and offer the traditional token of apology, all of which were rejected. In addition, counsel for the accused submitted that it should be found that, at the time of commission of the offences, the accused had diminished criminal responsibility.

[10]                No evidence was led by either the accused or the State on the question of sentence. The two reports were handed in by consent and the contents accepted by both parties. It was recognised that the court is not bound by the reports and the recommendations contained in them.

[11]                The reports throw further light on the personal circumstances of the accused. They also contain material concerning the incident itself, some of which was additional to that set out in the statement in terms of s 112(2). I have had no regard to that aspect of the reports. Since the state did not lead evidence and accepted the statement in terms of s 112(2) of the Act, I am bound by those facts.[4] The accused could have given that evidence or included it in the said statement but elected to do neither.

[12]                The additional factors mentioned in the reports which are relevant are the following. The accused was departmentally charged and given a final warning and a suspended fine of one month’s salary. He wants to provide for the needs of his child and requested that the social worker facilitate this through victim-offender dialogue. He wants to be actively involved in the life of his child. He also wishes to cleanse the family of the victim to show his remorse. He was raised by his mother’s family. He supports his father, mother, four siblings and an unrelated member of the community who has no parents. He owns and manages a soccer team, having previously been a striker for the team. He is an active member of the Galilee Zion Church. He completed grade 12 and enrolled for further part time study but discontinued this after the incident. At work and home he is regarded as a quiet, non-violent, respectful person with a warm heart. He gets on well with his colleagues and his supervisor, despite some of his colleagues having shot at and injured him during the incident.

[13]                The probation officer is of the opinion that a custodial sentence is not appropriate because the accused is the breadwinner, has a child from the deceased and is a first offender. A fine would be appropriate. She recommends correctional supervision in terms of s 276(1)(h) of the Act. The Correctional Services report indicates that the accused ‘meets the physical criteria’ for a sentence of correctional supervision and, in addition, recommended that he should pay victim compensation to the family of the deceased of R50 000 by way of a deposit of R10 000 and monthly instalments of R2 500 for three years. Apart from a brief comment on the attitude of the father of the deceased, neither report deals in any focussed way with factors other than the personal circumstances of the accused.

[14]                The reports indicate that the father of the deceased is frustrated and feels helpless. The deceased was going to graduate on 20 May 2010, days after she was murdered. He is seeking compensation for her death. He would not support a sentence of correctional supervision.

[15]                The first enquiry is whether there are substantial and compelling circumstances, as envisaged in s 51(3) of the CLA, which warrant a lower sentence than the minimum prescribed sentence in each count.

‘The essence of this approach is that courts retain the discretion to determine appropriate sentences in view of the obvious injustice implicit in an obligation to impose only the prescribed sentences in any given circumstance. However, courts are required to approach sentencing conscious that the legislature has ordained that particular sentences should ordinarily be imposed regarding crimes covered by the legislation…

… As to what factors amount to "substantial and compelling" circumstances within the contemplation of the legislation the court stated that all factors traditionally taken into account by courts were still relevant and that the "cumulative impact of those circumstances may justify a departure"’.[5]

It has also been held, in support of the need to obtain appropriate information which may bear on the issue, that:

‘[W]here s 51(1) applies, an accused must not be subjected to the risk that substantial and compelling circumstances are, on inadequate evidence, held to be absent. At the same time the community  is entitled to expect that an offender will not escape life imprisonment – which has been prescribed for a very specific reason – simply because such circumstances are, unwarrantedly, held to be present….’[6]

Although life imprisonment is not the minimum sentence prescribed in the present matter, the above reasoning holds good for any prescribed sentence. The summary in Malgas is a handy guide to the basic approach to be taken:

‘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.’[7]

[16]                It is clear that diminished criminal responsibility is ‘not a defence but is relevant to sentence because it reduces culpability’.[8] Counsel for the accused placed strong reliance on cases which held that, where diminished responsibility is found, the deterrent effect of a sentence on the accused or on others who may find themselves in a similar situation ‘is not an important factor’.[9] This approach was not followed by the majority in Venter. Even if it is correct, it relies for its force on a need to find as a fact the extent of the diminished criminal responsibility. This is ‘diminished capacity to appreciate the wrongfulness of one's actions and/or to act in accordance with an appreciation of that wrongfulness’.[10] It was held in Venter that diminished criminal responsibility ‘is not a definite condition. It is a state of mind varying in degree that might be brought about by a variety of circumstances’.[11] In each case the question is the extent, or degree, to which the particular circumstances reduced the powers of restraint and self-control of the accused. This means that the facts of each case must be considered on their own merits. This was elegantly summarised in Mnisi as follows:

‘Whether an accused acted with diminished responsibility must be determined in the light of all the evidence, expert or otherwise. There is no obligation upon an accused to adduce expert evidence. His ipse dixit may suffice provided that a proper factual foundation is laid which gives rise to the reasonable possibility that he so acted. Such evidence must be carefully scrutinised and considered in the light of all the circumstances and the alleged criminal conduct viewed objectively. The fact that an accused acted in a fit of rage or temper is in itself not mitigatory. Loss of temper is a common occurrence and society expects its members to keep their emotions sufficiently in check to avoid harming others. What matters for the purposes of sentence are the circumstances that give rise to the lack of restraint and self control.’[12]

[17]                I was invited to accept that the ipse dixit of the accused was to the effect that his criminal responsibility was diminished. He does not, however, say so in terms. What he says is that he was ‘severely emotionally overwrought’ and was ‘emotionally disintegrated’ whatever these phrases may mean. He also significantly said ‘I was still able to differentiate or appreciate between right and wrong and I was able to act in accordance with such appreciation’. I therefore need to evaluate the facts of the case to see whether there was a reduction in the capacity of the accused to appreciate the wrongfulness of his actions and to act in accordance with that appreciation.

[18]                Boiled down to their essence, the facts, as related by the accused, are as follows. There was a history of infidelity on the part of his fiancé. She claimed that her affair had ended. He discovered that this was not so. He phoned her as a result and she said that she wanted to terminate her relationship with him. He left duty two hours early, taking his firearm with him. He persuaded her to leave her place of employment and return with him. It is not clear where she was to go since he was to alight at the KwaDlangezwa turnoff. He did not say whether they conversed during the various legs of the journey. She was sending SMS messages during the trip and clearly did not want him to know who the exchanges were with. When he alighted he was confronted by members of the Correctional Services staff who gave him a command to surrender his firearm which he ought not to have taken from his workplace. He refused to do so and the employee who was a close friend of the deceased’s lover tried to grab his firearm. When the accused retreated, this person opened fire. The accused drew his firearm and shots were exchanged. The vehicle carrying the deceased started to move off. He jumped onto the back of the vehicle which stopped after about 50 metres and the driver evacuated and ran away. He then entered the vehicle and was shot on the foot or leg whilst doing so. He ordered the passengers to duck and shot at the deceased because he wanted to ‘die with her’, being ‘severely emotionally overwrought’. He did not want to die alone and leave the deceased with her lover. Although he was ‘emotionally disintegrated’, he appreciated that what he was doing was wrong and could act in accordance with that appreciation.

[19]                From all of this it is clear that the trigger for the shooting was his stated belief that he might die. This arose, he says, from being shot on his ‘foot and legs’ after he resisted a lawful command to surrender his firearm. He does not say why he resisted doing so. He was not entitled to retain it. He hints that it was because one of the people demanding it was a friend of Mabuyakhulu. This is certainly not the only inference to draw. There were other colleagues from Correctional Services present as well. The parts of his statement on which he relies for a finding of diminished responsibility are when he says that he was ‘severely emotionally overwrought’ and was ‘emotionally disintegrated’. What is crucial is that, in the midst of these events and despite his emotion, he says that he was still able to appreciate the wrongfulness of his conduct and to act accordingly. When he realised that he was under attack, he entered the vehicle with the intention to kill the deceased. He was clearly also able to appreciate the danger to others so as to warn them to duck whilst he shot at the deceased.

[20]                It is not clear that he believed he would die. Certainly being shot on the foot and legs (and he does not say where these shots landed) would not likely give rise to that belief. The belief, more probably, was that those shooting at him may at some stage land a fatal shot. It is curious that, whilst he says he was attempting to take cover, he ceased defending himself by shooting back at his assailants and decided to kill the deceased. He was clearly motivated by jealousy in deciding that, if he should die, his fiancé must not be left alive to continue her relationship with her lover and the lover should not have what he, the accused, could not have.

[21]                Unlike in so many cases involving one lover killing another, there was no history of abuse. The history was of the deceased’s infidelity. This took place while they were not yet married, even though part of the ilobola had been paid and a child had resulted from the union. The history was also of the accused’s jealousy and his refusal to accept that the deceased may desire someone other than him. This is what prompted him to leave work early and fetch the deceased. His primary motivation was to prevent the desire of his fiancé to have a relationship of her choice if he should die. He decided to rather kill the deceased (and risk killing the complainant in count 1) than to either simply stay in the vehicle in the hope that his assailants would stop shooting for fear of killing innocent occupants or to shoot back at them. In my view none of this establishes that the accused had ‘diminished capacity to appreciate the wrongfulness of one's actions and/or to act in accordance with an appreciation of the wrongfulness’.[13] His ipse dixit is to the contrary.

[22]                The cases relied upon by counsel for the accused all have different facts. In Mnisi the sentence was reduced from eight years to five years on appeal. In that matter, there had also been a history of infidelity which the appellant thought had been resolved. The appellant came across his wife and the deceased embracing in a vehicle and immediately drew his firearm and shot the deceased. At the time he was gripped by emotion. In the present case, the accused had time to reflect on the situation between the previous night and the time of the incident. He even had time to reflect after suspecting that she was communicating with her lover by cellphone in the taxi. He left her on the transport but, while being shot at, re-entered the vehicle and decided that she should not be left alive if he was to die. Mnisi lost control of his ‘inhibitions’ whereas the accused said that he could act in accordance with what was right and was goal directed. Mnisi was convicted on the basis of dolus eventualis whereas the accused correctly accepted that he had the direct intention to kill the deceased. The accused did not act out of rage, but out of jealousy and frustration that he might die and that his rival might enjoy a relationship that he could not enjoy. There is no doubt that his emotions were running high but his statement does not go so far as to show that his actions ‘were the product of emotional stress’.[14]

[23]                In Venter the appellant had attempted to kill his wife and had killed his two children. He had been accused of rape in Burundi and, after being granted bail in that matter and returning home, felt that his marriage had deteriorated and was suicidal. He had consumed alcohol and had a dispute with his wife. He said that the next thing he knew he was waking up in hospital and being informed of the death of his children. His wife had told him that if he was convicted of the Burundi offence, she would divorce him and take the children with her but had supported him through the Burundi incident and stood by him until the day of the offence. He had sobered up by the time of the incident and had been calm when he shot his son and wife and had taken careful aim at his fleeing daughter. It was held that he was aware of what he was doing. His effective sentence of 10 years’ imprisonment, in a matter where the minimum sentence prescribed was 15 years, was increased on appeal to 18 years, although one of the three judges dissented strongly.

[24]                In S v Ferreira & Others[15] the appellant was an abused woman who had come to the conclusion, supported by expert evidence concerning the responses which such ongoing abuse brought about, that the only way to preserve her bodily integrity was to kill the deceased, her husband. She contracted people to kill him and they had done so. They all pleaded guilty. The trial court held that there were no substantial and compelling circumstances which should cause it to reduce the prescribed sentence of life imprisonment. On appeal it was held that a six year sentence, wholly suspended, was appropriate due to diminished responsibility but that, since she had already served part of the sentence, she was sentenced to six years’ imprisonment of which any portion which had not been served was suspended for three years on certain conditions. The court held that the criterion for assessing moral blameworthiness where diminished responsibility existed was subjective.[16] A court ‘must look solely at what an accused believed and intended when deciding for purposes of sentence whether moral blameworthiness has been reduced’.[17]

[25]                In S v Marx,[18] the 41 year old appellant had been married to his wife, the deceased, for 19 years. The deceased’s feelings for the appellant had deteriorated markedly. She abused him verbally, was aggressive towards him and engaged in his public humiliation, calling him a ‘kruppel gat’. He had injured his hip in a motor vehicle accident which left him with a permanent limp. She initiated a divorce action. Allegations in the community surfaced of the deceased’s infidelity but he did not wish to believe them. These allegations were not groundless. The appellant wished to save the marriage but the deceased was implacable and the health of the appellant declined. The deceased taunted the appellant with her wonderful relationship with one Basson, saying that he had given her the best sex of her life. As a result of a confrontation to this effect, the appellant broke down, cried and begged the deceased to return to him and save the marriage. Her response was to tell him to get on with committing suicide by either shooting himself or taking poison. He went and fetched poison, which he ingested but when the deceased realised that he had done so, she phoned a neighbour who came to the assistance of the appellant. Thereafter a drowsy appellant retreated to his bedroom but decided to stay awake to see whether the deceased would leave him during the night. He went to the spare room to talk to the deceased who swore at him. He returned to her room on three more occasions but was rebuffed. He noticed his revolver lying on his bed and wanted to commit suicide. He returned to the deceased’s bedroom with the revolver, knelt at the end of her bed and the deceased encouraged him to shoot himself. He had the feeling that the revolver was being pulled from his head and his next memory was of seeing a flash from the gun and hearing a shot. A psychologist testified that it was probable that the appellant’s judgment was impaired and his ability to act in accordance with his knowledge of right and wrong was diminished to a significant extent. This was accepted by the appeal court. On appeal his sentence of 10 years’ imprisonment was set aside and the matter was remitted to the trial court for the imposition of a sentence of correctional supervision under s 276(1)(h) of the Act.

[26]                In the light of all the facts and the legal principles, I find that, whilst the accused was clearly emotional about the infidelity of the deceased and clearly found repugnant the thought that the deceased and Mabuyakhulu might be free to pursue a love relationship, no diminished criminal responsibility has been established. This, therefore, distinguishes this matter from those dealt with above and does not, in itself, give rise to substantial and compelling circumstances. To assess whether they are present, along with his emotional state, other aspects relevant to sentence must be evaluated. These are ‘the nature and circumstances of the offence, the characteristics of the offender and his circumstances and the impact of the crime on the community, its welfare and concern.’[19]

[27]                The fact that he pleaded guilty is of little moment in the circumstances. He was caught red handed with a number of eye witnesses present, although it counts for something that he did not unduly burden the state with the need to prove the charges. He did express remorse and attempted to make some recompense. To that must be added the significant character evidence emerging from the two reports and the personal circumstances mentioned above. He has clearly been a stable, productive member of the community and engaged in uplifting actions over a long period of time. He has supported family and community members and wishes to support his child from the deceased and to take an active role in her life. He is a first offender and does not seem to display a propensity to violence. It seems clear that the accused is a candidate for rehabilitation. Of course, the emotional struggle of dealing with the infidelity and lack of honesty of the deceased must also be taken into account.

[28]                An aggravating factor, however, is that, whilst he was able to control his actions, the accused treated a defenceless woman as a chattel who existed purely for his benefit. He did not accord her the dignity of choice concerning her life. She had clearly told him that she wished to terminate their relationship. She had accompanied him when he requested it but we do not know why she did so and whether or not this may have been under duress. He did not accept that she was entitled to send text messages to anyone whom she chose without being answerable to the accused. He regarded it as his right to know who she was communicating with and to bar her from communicating with her lover.

[29]                A 2012 study by the Medical Research Council showed that, of every two women who are murdered, one is killed by her partner. This means that the proprietary attitude of men towards women has reached extremely serious proportions in our society. This attitude makes a mockery of the right to life accorded by the Constitution to all within our borders.[20] If a person kills another, this is the ultimate negation of the right to life. This set of attitudes also fundamentally undermines, during life, many of the other rights of women, including the right to equality, the right to human dignity, the right to freedom and security of their persons, the right not to be subjected to servitude, the right to privacy and the right to freedom of association contained in the Bill of Rights.[21] This proprietary attitude is inimical to a democratic society based on values of human dignity, equality and freedom.[22] It is clear that, in addition to depriving the deceased of her right to life, the accused infringed at least some of these other rights afforded to the deceased by our Constitution. It is my view that the nature of the offence and the interests of society demand that the crimes committed by the accused be severely punished.

[30]                In Mudau v S[23] the Supreme Court of Appeal recently held as follows:

‘Domestic violence has become a scourge in our society and should not be treated lightly, but deplored and also severely punished. Hardly a day passes without a report in the media of a woman or child being beaten, raped or even killed in this country. Many women and children live in constant fear. This is in some respects a negation of many of their fundamental rights such as equality, human dignity and bodily integrity. This was well articulated in S v Chapman 1997 (3) SA 341 (SCA) at 345A-B when this Court said the following:

“Women in this country have a legitimate claim to walk peacefully on the streets to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.”’

This says clearly what I have attempted to highlight above.

[31]                The question arises as to the deterrent effect of any sentence, both on the accused and in respect of others who may find themselves with similar urges. Since the accused could appreciate the consequences of his actions, deterrence is an appropriate factor to take into account. The accused has given no indication that he has come to realise that his attitude to the deceased was inappropriate. He may well constitute a danger to future fiancés or lovers. In addition, men within society in general can benefit from the deterrent effect of a sentence passed on the accused if they encounter situations where they are consumed by jealousy or cannot accept their rejection by a woman they claim to love.

[32]                In considering an appropriate sentence it is necessary to bear in mind that, in providing for correctional supervision and a range of non-custodial sentences, the legislature has distinguished between offenders who ought to be removed from society and those who, although deserving of punishment, do not.[24] The first duty of a sentencing court is to decide into which category the accused falls. Having anxiously considered all of the above factors, including the reports from the authorities and the submissions of counsel for the accused, it is my view that, despite the recommendation of the probation officer, the accused falls into the category of those who must be removed from society.

[33]                The aggravating features of the crimes of which the accused has been convicted, the need for deterrence and retribution and the interests of society that women should be able to make free and unfettered choices without fearing reprisal must be weighed with the mitigating factors arising from the ‘emotional disintegration’ and other personal circumstances of the accused. In addition, since the accused is a candidate for rehabilitation, it is in the interests of society that he be allowed to once more become a productive member of society after having served a sentence of imprisonment and being given the incentive to do just that. In the light of all of these, I am of the view that, if I were to impose the minimum prescribed sentence of 15 years’ imprisonment, an injustice would result. I therefore find that there are substantial and compelling circumstances as envisaged by s 51(3) of the CLA.

[34]                Taking into account all the circumstances of the case, I consider a sentence of three years’ imprisonment appropriate for count four and one of 10 years as appropriate for count five. It is appropriate that the sentence for count four is made to run concurrently with that imposed for count five as being part of the same unfolding tableau on the day in question.

[35]                In the result, the accused is sentenced as follows:

1.                        On count 4 the accused is sentenced to 3 years’ imprisonment.

2.                        On count 5 the accused is sentenced to 10 years’ imprisonment.

3.                        The whole of the sentence on count 4 is ordered to run concurrently with that imposed in respect of count 5.

DATE OF HEARING:                     14 and 16 August 2012 and 23 April 2014.

DATE OF JUDGMENT:                   24 April 2014.

FOR THE STATE:                             Adv Khathi of the NDPP.

FOR THE ACCUSED:                      Mr Ngobese, attorney of Ngobese and Company.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

                                                           

                                                                                                                   REPORTABLE

Case no: 732/12

                                                                                 

In the matter between:

NELSON SEPURU MAKGATHO                                                                                  Appellant

             

and

THE STATE                                                                           Respondent

Neutral citation:        Makgatho v S (732/12) [2013] ZASCA 34 (28 March 2013)

Coram:           MAYA, MALAN, SHONGWE, MAJIEDT JJA and MBHA AJA

Heard:            11 March 2013

Delivered:       28 March 2013          

Summary:      Criminal Law – murder – mens rea – intention to kill – dolus eventualis – test subjective – discharging firearm fully aware and reckless of the danger posed to those in vicinity and deceased in particular.                                                                                                                           

 

ORDER

___________________________________________________________________

On appeal from:  North Gauteng High Court (Pretoria) (Mavundla J and Ebersohn AJ) sitting as court of appeal):

The appeal against conviction and sentence is dismissed.

JUDGMENT

___________________________________________________________________

SHONGWE JA (MAYA, MALAN, MAJIEDT JJA, MBHA AJA concurring)

[1]        This appeal arises from the conviction and sentence on a charge of murder by the regional court magistrate (Polokwane). The conviction and sentence were confirmed by the Gauteng High Court, Pretoria (Mavundla J and Ebersohn AJ concurring). The appeal is before this court with leave of the court below.

[2]        The regional court magistrate came to the conclusion that the appellant was guilty of murder on the basis of dolus eventualis in that:

‘he foresaw that what he did would cause an accident, but he decided to adopt an: (sic!) “I do not care” attitude, and that attitude of his that he did not care of what was going to happen when he shot in the air in the presence of other people, resulted in the death of the deceased.’

[3]        The appellant was legally represented in the courts below but due to lack of resources he approached the legal aid board for assistance and they entered the fray only at a later stage. Perhaps that is why no notice of appeal was filed. Be that as it may, counsel for the appellant raised the following questions in his heads of argument.

(a)  Whether the evidence presented by the State is reliable enough for a court to find that the appellant’s conduct evidenced an intention in the form of dolus eventualis, or whether the appellant should be convicted of another offence, for example, culpable homicide.

(b) The failure of the court below to provide full reasons why it agreed with the regional court magistrate.

(c) Regarding sentence, the appellant contended that the court below should have found substantial and compelling circumstances to justify a lesser sentence than the prescribed 15 years’ imprisonment on the grounds that there was no pre-planning of the offence; the appellant was convicted on the basis of dolus eventualis, which, on its own is a substantial and compelling circumstance; and the fact that the incident took place at a tavern where some of the witnesses were under the influence of alcohol.

[4]        The respondent, on the other hand, contended that the main issue is whether the trial court correctly accepted the evidence of the state witnesses as being trustworthy on the question whether or not it was the appellant who fired the fatal shot without any struggle over the firearm. The other issue was whether the State succeeded in proving that the appellant had the necessary intention in the form of dolus eventualis. The respondent contended that the trial court correctly convicted the appellant and that the sentence imposed was proper.

[5]        A brief review of the facts is necessary. The incident occurred on 20 February 2004, between 20:00 and 21:00 in the evening, at a tavern in Senobarana in Limpopo, where the state witnesses, Stanley Maloba, Daphne Madibane, Jeanette and Nicholas Maloba were seated and drinking alcohol. Apparently other people were also sitting and drinking there. The appellant arrived in a bakkie and went straight to where the state witnesses were seated and called Daphne, who refused to go to him. The appellant returned to his vehicle and came back to the state witnesses and pulled Daphne. The others stood up and objected to the appellant’s conduct. The appellant slapped Daphne on her face. He also slapped Nicholas and slapped Stanley twice. When the appellant was asked if he came to fight, he took out a firearm and grabbed Stanley with one hand and fired a shot up in the air. Nicholas, Daphne and Jeanette, ran away. Stanley said that the appellant then pointed the firearm to the front and fired a second shot. He then let go of Stanley and left for his vehicle.

[6]        The appellant’s version is that he did arrive at the tavern on the day in question and called Daphne who stood up and went to him. While he was talking to her one of the men (apparently it was Stanley) came up and pulled Daphne away from him. When he enquired what was going on, Stanley slapped him with an open hand. There was an exchange of slapping between them. He said that, while this was taking place, Nicholas and Jeanette approached him wanting to attack him. He then pulled a firearm and fired one shot into the ground. They pleaded with him to put the firearm away so that they could talk, which he did. Suddenly they dragged him in an attempt to take the firearm away. A struggle over the firearm ensued and four shots went off. He overpowered them and managed to take control of the firearm. He said he did not know who pulled the trigger.

[7]        After the shooting, someone reported that a person, who turned out to be the deceased had been shot. Stanley went to the appellant to inform him that he had shot someone. The appellant went to see the victim, who was still alive then. He saw that he was bleeding and had a gunshot wound on the left hand side of the neck. But because he was afraid that the people might attack him, he drove away.

[8]        The nub of this appeal is whether the appellant acted with dolus eventualis when he caused the death of the deceased. Most of the facts are common cause save for the question of how the shots were fired and who fired them. The trial court accepted the version of the State and rejected that of the appellant as not being reasonably possibly true. It is trite that the State must prove its case beyond reasonable doubt and that an accused person is not obliged to give a version of events. However, if and when he does give a version, it must be reasonably possibly true for it to be accepted by the court. The trial court must, of course, examine the totality of the particular facts, and any inferences to be drawn, in considering its verdict. (See R v Difford 1937 AD 370 at 373 and 383 and S v van der Meyden 1999 (1) SACR 447 (W) at 448F-H – also reported as 1999 (2) SA 79 (W).

[9]        A person acts with intention, in the form of dolus eventualis, if the commission of the unlawful act or the causing of the unlawful result is not his main aim, but he subjectively foresees the possibility that in striving towards his main aim, the unlawful act may be committed or the unlawful result may ensue, and he reconciles himself to this possibility (see C R Snyman Criminal Law 5^th ed (2008) at 184). E M Burchell and P M A Hunt South African Law and Criminal Procedure 1997, at 131 said:

‘It is sufficient if the accused, having foreseen the real possibility of the existence of the circumstances in question, nevertheless persisted in his conduct irrespective of whether it existed or not.’

(See also Annual Survey of South African Law (1964) at 73). In other words, it must be shown that a real – as opposed to a remote – possibility of that consequence resulting was foreseen. In S v van Wyk 1992 (1) SACR 147 (Nms) at 161b, Ackerman AJA expressed himself as follows:

‘…I am accordingly of the view that the subjective foresight required for dolus eventualis is the subjective appreciation that there is a reasonable possibility that the proscribed consequence will ensue.’

[10]      The fundamental question is not whether he should have accepted that the result would follow, but whether in actual fact he accepted that it would follow.  The test in respect of intention is subjective and not objective. The objective test is applicable in cases involving negligence and not intention (see S v Ngubane 1985 (3) SA 677 (A) at 685D-F; S v Dladla 1980 (1) SA 1 (A) at 4A-B). There is a plethora of authorities demonstrating the rule that murder is a crime requiring intention; it cannot be committed negligently. See, for example, S v Qege 2012 (2) SACR 41 (ECG) at 48e-f where it was said that:

‘Where the accused performs an action knowing or foreseeing that somebody may be killed, and yet, despite that knowledge and reckless of the eventuation of the possible result, persist with that action, the form of intention is known as dolus eventualis.’

(See also S v Swanepoel 1983 (1) SA 434 (A) at 440A-B; S v Nhlapo 1981 (2) SA 744 (A) at 750H-751C; S v Dube 1972 (4) SA 515 (W) at 520G-H).

[11]      The question to be decided is whether the State has proven beyond a doubt that the appellant subjectively foresaw the possibility that his actions would result in the death of the deceased, and nevertheless persisted in his conduct. I must state from the outset that the appellant’s version was correctly rejected by the trial as well as the court below. It is not reasonably possibly true. He contends that after Stanley and he exchanged slaps, his life was in danger, in that the other persons (Nicholas and Jeanette) who were seated with Daphne, wanted to attack him. He then fired the first shot into the ground. He was unable to say how they wanted to attack him, he simply said that they formed a circle around him. Nothing was said about whether they carried any weapons, nothing said about what they actually did besides forming a circle around him. All the witnesses for the State testified that the appellant was the one who initiated the physical violence by slapping Daphne, thereafter slapping Nicholas and then Stanley twice. The appellant did not know the persons who were seated with Daphne, and they too, except for Daphne, did not know him. I find it very strange and unlikely that Stanley would slap him first, without a word. It is more likely that the appellant was the aggressor. He came to talk to his so-called girlfriend, and a stranger tried to stop him from doing so. I think that the appellant became cross and slapped him, thereafter produced a firearm and fired two shots. There was absolutely no evidence of any imminent danger.

[12]      The appellant came to a tavern where there were many people seated around and drinking. He contends that a struggle over the firearm ensued and four gunshots went off during the struggle. He contends that the firearm was in the holster on his hip and that he was holding the butt and the others were holding the barrel. It seems to me that his hands were very close to the trigger, comparatively speaking, and if shots went off they would have either injured him or one of the people involved in the struggle. His version is not only improbable, it is palpably false and deserves to be rejected. What is even more crucial is that his version of events was never put to the state witnesses. It only came up when the appellant testified.

[13]      The State relied on the evidence of Stanley, whose evidence was corroborated to some extent by Daphne, Nicholas and Molokomme. Molokomme had been seated with the deceased. He observed the appellant when he came to the tavern and when he returned to the vehicle to fetch the firearm. All the witnesses testified that the appellant came, called Daphne and returned to the bakkie, although they could not say what he did at the bakkie. Only Molokomme said that he fetched a firearm and returned to where Stanley and the others were seated.

[14]      Counsel for the appellant criticized Stanley’s evidence in that he admitted being under the influence of alcohol, that he contradicted Daphne when he said they were all drinking alcohol and that he contradicted his statement to the police. In my view the criticism is ill-founded and immaterial. There is no evidence that Stanley was so inebriated that he could not remember the incident. Whether Daphne had alcohol or not, which she denied, is of no consequence and irrelevant. The contradiction in Stanley’s statement to the police is also immaterial in that it refers to whether or not after the appellant fired the first shot, he put the firearm back in its holster. The appellant himself was not sure whether he did so before the alleged struggle over the firearm broke out. It was put to Stanley that he did not see the appellant pointing the firearm at the deceased. However, counsel for the appellant, conceded before us correctly so, that the appellant did not have to know the whereabouts of the deceased at the time of the shooting.

[15]      In the present case, the appellant foresaw the possibility that his firing a shot, whether into the ground or in the air, in the presence of many people, would result in harm and he reconciled himself to this possibility (see S v Sigwahla 1967 (4) SA 566 (A) at 570B-C; S v van Zyl 1969 (1) SA 553 (A) at 557A-E; S v Mtshiza 1970 (3) SA 747 (A) at 752A-H). As I have already mentioned, it is significant that the defence at no stage put to the state witnesses the appellant’s allegation that four shots went off during the struggle over the firearm. The trial court accepted that two gun shots were fired and one of the bullets fatally wounded the deceased.

[16]      The other witnesses ran away after the first shot was fired, but as I said, they corroborated Stanley’s evidence on what happened before the first shot was fired. The version of the State is fortified, to some extent, by the behaviour of the appellant after he was made aware that he had shot someone. He did a noble thing by proceeding to the injured person but did not offer assistance, he simply walked away. One would have expected him to give assistance, for example, to take him quickly to a hospital. He said that he got a fright, because he thought the people might attack him, but he did not drive to the nearest police station to report this unfortunate happening. He left the scene without uttering a word until he was arrested months later. His actions after the shooting are incongruous with his plea that it was all an unfortunate accident.

[17]      In Rex v Dhlumayo 1948 (2) SA 677 (A) at 702, Davis AJA remarked that:

‘It would be most unsafe invariably to conclude that everything that is not mentioned [in a judgment] has been overlooked. … Lord Wright cites with apparent approval … the statement of Lord Buckmaster in Clarke’s case; [Clarke v Edinburgh and District Tramways Company (1919 S.C (H. L.), 35] with which Lord Atkinson had expressly associated himself, that

“Courts of appeal should not seek anxiously to discover reasons adverse to the conclusions of the learned Judge who has seen and heard the witnesses and determined the case on the comparison of their evidence.”’

Marais JA in S v Naidoo 2003 (1) SACR 347 (SCA) para 26 also emphasized the above quotation by saying the following:

‘In the final analysis, a Court of appeal does not overturn a trial Court’s findings of fact unless they are shown to be vitiated by material misdirections or are shown by the record to be wrong.’

Counsel for the appellant, in this case, did not suggest that the trial court’s conclusions were vitiated by material misdirections or were shown to be wrong.

[18]      On the basis of the above reasons I find that the appeal must fail. The trial court’s findings were correct, unassailable as confirmed by the court below. I now turn to the question of sentence.

[19]      It is trite that sentencing is pre-eminently in the discretion of the trial court. The offence with which the appellant has been charged is unarguably a very serious one. It is also common cause that it falls within the sentencing regime of the Criminal Law Amendment Act 105 of 1997 read with Part II of Schedule 2 of the Act. The prescribed sentence is 15 years imprisonment, unless substantial and compelling circumstances exist to justify a lesser sentence. The trial court carefully considered all the necessary factors and concluded, correctly so, that no substantial and compelling circumstances existed to justify a lesser sentence. This court is therefore not at large to interfere with the sentence in the absence of a misdirection. Counsel for the appellant, correctly so, in my view, conceded that he cannot forcefully argue against the sentence imposed. I find that the appeal against sentence also cannot succeed.

[20]      In the result the following order is made:

            The appeal against conviction and sentence is dismissed.

           

                                                                                                ________________________

                                                                                                J B Z SHONGWE

                                                                                                JUDGE OF APPEAL

APPEARANCES

FOR APPELLANT:               L M Manzini

Instructed by:             

Legal Aid Board, Pretoria;

Legal Aid Board, Bloemfontein.

FOR RESPONDENT:            E V Sihlangu

Instructed by:             

Director of Public Prosecutions, Pretoria;

                                                Director of Public Prosecutions, Bloemfontein.

---

[1] Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) at para 14.

[2] The paragraph numbers have been omitted and most of the grammar in the quote corrected.

[3] It is important to bear in mind that the prescribed sentences begin with the minimums and extend, in each case, to life imprisonment. A higher sentence than the minimum may be imposed. See S v Mthembu 2012 (1) SACR 517 (SCA) para 11 where the following was said: ‘It follows that, even were a court to conclude that substantial and compelling circumstances do indeed exist, it may in the exercise of its sentencing discretion nonetheless impose the prescribed minimum or such higher sentence as to it appears just.’

[4] S v Soci 1986 (2) SA 14 (A)

[5] Director of Public Prosecutions, Transvaal v Venter 2009 (1) SACR 165 (SCA) para 17 & 18, S v Malgas 2001 (1) SACR 469 (SCA).

[6] Rammoko at para 13.

[7] Malgas, Subpara I of para 25, p 482. This approach was approved by the Constitutional Court in S v Dodo 2001 (1) SACR 594 (CC) para 40.

[8] Per Cloete JA in the minority judgment in Venter at para 47.

[9] Ibid at para 61. See also Mnisi v The State [2009] 3 All SA 159 (SCA) at para 34.

[10] Per Mlambo JA in Venter at para 21.

[11] Per Nugent JA para 65.

[12] Para 5.

[13] See note 10 supra.

[14] Mnisi at para 6.

[15] 2004 (2) SACR 454 (SCA).

[16] At para 44.

[17] Ferreira at para 44.

[18] 2009 (2) SACR 562 (ECG).

[19] Per Friedman J in S v Banda 1991 (2) SA 352 (B) at 355A-C, as approved in S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para 10. For the more traditional formulation, see S v Zinn 1969 (2) SA 537 (A) at 540G.

[20] The Constitution of the Republic of South Africa, 1996.

[21] Sections 9, 10, 12, 13, 14 and 18 of the Constitution.

[22] Section 7(1) of the Constitution.

[23] (547/13) [2014] ZASCA 43 (31 March 2014) para 6. See also S v Baloyi 2000 (1) SACR 81(CC) at para 11.

[24] S v R 1993 (1) SACR 209 (A) 221h; S v Bergh 2006 (2) SACR 225 (N) 235e.