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[2015] ZAWCHC 150
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Tafeni v S (A 282/15) [2015] ZAWCHC 150; 2016 (2) SACR 720 (WCC) (16 October 2015)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case no. A 282/15
DATE: 16 OCTOBER 2015
In the matter between:
MAVELWANO
TAFENI
...........................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DATED 16 OCTOBER 2015
BINNS-WARD J:
[1]
The appellant was duly convicted in
September 2010 of murdering Noliswa Mdekwana by stabbing her multiple
times with an okapi knife.
He had pleaded guilty and the
factual particulars were set out in his statement in terms of
s 112
of the
Criminal Procedure Act 51 of 1977
. The trial court found
that there were no substantial and compelling reasons to depart from
the prescribed minimum sentence
and accordingly sentenced him on
22 September 2010 to a term of fifteen years’
imprisonment. An application for
leave to appeal against the
sentence, brought well out of time, was refused by the trial court in
November 2014. The appeal
is before us with leave granted by
this court (per Erasmus and Yekiso JJ) on petition in May
2015.
[2]
The appellant’s counsel submitted, as
he had to if the appeal were to enjoy any prospect of success, that
the trial court
had erred in its finding that there were no
substantial and compelling reasons justifying the imposition of a
lesser sentence than
the prescribed minimum sentence. Counsel
for the state, on the other hand, submitted that this court would be
entitled to
interfere with the sentence imposed only if it were able
to find a material misdirection on the part of the sentencing
magistrate.
[3]
While the approach propounded in the
argument for the state is generally correct in regard to appeals
against sentence, it would
be counterintuitive to apply it when the
initial question is not whether the sentence itself was vitiated by
some or other material
misdirection by the sentencing court, but
whether the court was right or wrong to have determined on the facts
of the case that
there were no substantial or compelling
circumstances justifying a departure from the prescribed minimum
sentence. It is
clear that the determination of an appropriate
sentence entails the exercise of judicial discretion in the narrow or
strict sense
of the word (sometimes termed ‘true discretion’).
It is for that reason that an appellate court’s powers
to
interfere are circumscribed. In determining an appropriate
sentence, a trial court exercises a power that allows it to
choose
from a wide range of equally permissible options. It cannot be
found to be wrong simply because the appeal court might,
had it been
the first instance decision maker, have selected a different one.
[4]
However, the exercise of a narrow
discretion is not involved in the making by a sentencing court of a
finding in terms of
s 51(3)
of the
Criminal Law Amendment Act
105 of 1997
that it is, or is not,
satisfied that substantial
and compelling circumstances exist which justify the imposition of a
lesser sentence than the minimum
sentence prescribed in subsections
(1) and (2). While the range of relevant
circumstances falling to be taken into account in making the finding
in the given
cases will in the nature of such matters necessarily be
disparate and incommensurable, there is not a range of equally
permissible
options available to the decision maker. The court
is either properly satisfied as to the existence of substantial and
compelling
circumstances, or it is not.
[5]
The position is analogous to that which
obtains in regard to a court’s discretion in respect of the
grant of interdictory
relief. In
Knox D'Arcy Ltd and
Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A), which concerned
an appeal against the refusal by the court below of an interim
interdict, the Appellate Division found, for
the reasons explained at
pp. 360-362 of the judgment, that the matter involved the
exercise by the court a quo of its discretion
in the wide sense and
that the appeal court thus was less constrained in its ability to
interfere than it would have been had the
discretion involved been
one in the true sense. It was therefore at liberty to decide
whether the interdict had been correctly
refused applying its own
view of the proper outcome.
[6]
The distinction between discretion in the
strict and wide senses (or the true and loose senses) is well
recognised in our jurisprudence.
The distinction is made for
the very purpose of determining the extent of an appellate court’s
power to substitute its own
determination for that of the court a quo
where the decision in point is accepted to have involved the exercise
of ‘a discretion’.
The nature of the distinction
was most recently discussed in the Constitutional Court’s
judgment in
Trencon Construction (Pty)
Ltd v Industrial Development Corporation of South Africa Ltd and
Another
2015 (5) SA 245
(CC), where it
was applied in determining the extent of the court’s powers to
interfere on judicial review with a discretionary
administrative
decision. Khampepe J rehearsed the relevant principles as
follows at para 83 - 88:
[83] In order to decipher
the standard of interference that an appellate court is justified in
applying, a distinction between two
types of discretion emerged in
our case law. That distinction is now deeply rooted in the law
governing the relationship
between appeal courts and courts of first
instance. Therefore, the proper approach on appeal is for an
appellate court to ascertain
whether the discretion exercised by the
lower court was a discretion in the true sense or whether it was a
discretion in the loose
sense. The importance of the distinction is
that either type of discretion will dictate the standard of
interference that an appellate
court must apply.
[84] In
Media
Workers Association
[
Media Workers
Association of South Africa and Others v Press Corporation of South
Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992 (4) SA 791
(A)]
the
court defined a discretion in the true sense:
‘
The
essence of a discretion in [the true] sense is that, if the
repository of the power follows any one of the available courses,
he
would be acting within his powers, and his exercise of power could
not be set aside merely because a Court would have preferred
him to
have followed a different course among those available to him.’
[85] A discretion in the
true sense is found where the lower court has a wide range of equally
permissible options available to
it. This type of discretion has been
found by this court in many instances, including matters of costs,
damages and in the award
of a remedy in terms of s 35 of the
Restitution of Land Rights Act. It is ‘true’ in
that the lower court
has an election of which option it will apply
and any option can never be said to be wrong as each is entirely
permissible.
[86] In contrast, where a
court has a discretion in the loose sense, it does not necessarily
have a choice between equally permissible
options. Instead, as
described in
Knox
[
Knox D'Arcy
Ltd and Others v Jamieson and Others
supra]
, a
discretion in the loose sense —
‘
mean[s]
no more than that the court is entitled to have regard to a number of
disparate and incommensurable features in coming to
a decision’.
[87] This court has, on
many occasions, accepted and applied the principles enunciated in
Knox
and
Media Workers Association
. An appellate
court must heed the standard of interference applicable to either of
the discretions. In the instance of a
discretion in the loose sense,
an appellate court is equally capable of determining the matter in
the same manner as the court
of first instance and can therefore
substitute its own exercise of the discretion without first having to
find that the court of
first instance did not act judicially.
However, even where a discretion in the loose sense is conferred on a
lower court, an appellate
court's power to interfere may be curtailed
by broader policy considerations. Therefore, whenever an
appellate court interferes
with a discretion in the loose sense, it
must be guarded.
[88] When a lower court
exercises a discretion in the true sense, it would ordinarily be
inappropriate for an appellate court to
interfere unless it is
satisfied that this discretion was not exercised —
'judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or that it had reached a decision
which in the result
could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles'.
[Footnote omitted.]
An appellate
court ought to be slow to substitute its own decision solely because
it does not agree with the permissible option
chosen by the lower
court.
[Footnotes omitted.]
[7]
In
Knox D’Arcy
supra, at 362D-E, Grosskopf JA
illustrated the court’s conclusion that the court’s
discretion in respect of interdictory
relief was of the wide or loose
type as follows: ‘
Finally, in regard to the so-called
discretionary nature of an interdict: if a Court hearing an
application for an interim interdict
had a truly discretionary power
it would mean that, on identical facts, it could in principle choose
whether or not to grant the
interdict and that a Court of appeal
would not be entitled to interfere merely because it disagreed with
the lower court's choice
…. I doubt whether such a conclusion
could be supported on the grounds of principle or policy.
’
It seems to me that that observation must apply equally to the
determination of the existence of substantial and compelling
circumstances within the meaning of
s 51(3)
of the
Criminal Law
Amendment Act. Neither
principle nor policy could support one
court holding that such circumstances existed and another concluding
on identical facts
that they did not, and a court of appeal not being
able to interfere with either’s choice.
[8]
For these reasons, and mindful that we must pay due heed to
the discretionary nature of the decision by the lower court, even if
in the wide sense of the concept, I do not accept that we may
interfere only if we are able to identify a material misdirection,
or
a failure of the exercise of discretion. Although expressed
differently, this conclusion finds support, I think, in the
remarks
of Bosielo JA in
S v PB
2013 (2) SACR 533
(SCA) at para 20,
where the learned judge of appeal stated:
What then is
the correct approach by a court on appeal against a sentence imposed
in terms of the Act? Can the appellate court interfere
with such a
sentence imposed by the trial court's exercising its discretion
properly, simply because it is not the sentence which
it would have
imposed or that it finds shocking? The approach to an appeal on
sentence imposed in terms of the Act should, in my
view, be different
to an approach to other sentences imposed under the ordinary
sentencing regime. This, in my view, is so because
the minimum
sentences to be imposed are ordained by the Act. They cannot be
departed from lightly or for flimsy reasons. It follows
therefore
that a proper enquiry on appeal is whether the facts which were
considered by the sentencing court are substantial and
compelling, or
not.
See
also the judgment of the Full Court (per Rogers J, Gamble J
concurring, Matthee AJ dissenting) in
S v GK
2013 (2)
SACR 505
(WCC), at para 5-7, approving the pertinent dicta of
Cloete J (Robinson AJ concurring) in
S v Homareda
1999
(2) SACR 319
(W) ([1999]
4 All SA 549)
, at 326c-d (SACR): ‘
The
decision whether or not substantial and compelling circumstances are
present involves the exercise of a value judgment; but
a Court on
appeal is entitled to substitute its own judgment on this issue if it
is of the view that the lower court erred in its
conclusion: cf
Wijker v Wijker
1993 (4) SA 720
(A) at at
727E-728B
’. We were not referred to any of these
authorities in counsel’s heads of argument. I came across
them only
when I looked in the law reports to find support for the
conclusion at which I had arrived independently. While coming
to
the same conclusion that I have done, none of the judgments,
however, seems to have expressly identified the nature of the
discretion
entailed in the determination of the existence of
substantial and compelling circumstances in prescribed sentence cases
as the
basis for distinguishing an appellate court’s power to
intervene from that which it has in respect of sentence generally.
(Cloete J did so by inference in
Homareda
, by referring
to the passage in
Wijker
, which in turn cited the relevant
passages in
Media Workers Association
.)
[9]
I turn now to consider whether the court a quo was right to
have found that there were no substantial and compelling
circumstances
in the case that justified a lesser sentence than the
minimum prescribed in terms of the Act. It has been
authoritatively
acknowledged that the words ‘substantial and
compelling circumstances’ in the relevant context denote a
composite term
that defies precise definition. The existence of
such circumstances will generally be present when the case is one in
which
the sentencing court should feel a sense of unease amounting to
a conviction that ‘
the prescribed sentence
[would be]
unjust or, as some might prefer to put it, disproportionate to the
crime, the criminal and the legitimate needs of society. If that
is
the result of a consideration of the circumstances the court is
entitled to characterise them as substantial and compelling
and such
as to justify the imposition of a lesser sentence
’;
S v
Malgas
2001 (1) SACR 469
(SCA),
2001 (2) SA 1222
,
[2001] 3 All SA
220
, at para 22.
[1]
See also
S v Vilakazi
[2008] ZASCA 87
;
2009 (1) SACR 552
(SCA)
(2012 (6) SA
353
;
[2008] 4 All SA 396)
; especially at para 13-20, and the recent
rehearsal of the principles by this court in
S v Fortune
2014
(2) SACR 178
(WCC) in the context of a request by the court a quo in
that matter for ‘
some guidance with regard to how
[this
court]
sees the question of substantial and compelling
circumstances
’.
[10]
The appellant was involved in an extra-marital affair with the
deceased. It would appear that he was not the only man in her
life because he was attacked by another of her boyfriends and his
friends. He fled from his assailants to the deceased’s
house, where he expected to find refuge and support. The
deceased was not there when he arrived. She arrived shortly
afterwards with a beer can in her hand and visibly under the
influence of alcohol. She showed no sympathy for the appellant
and told him that it would have been better if her boyfriend had
stabbed him. This taunt caused him to lose his temper, draw
out
the knife from his pocket and stab her repeatedly. The stabbing
took place in the presence of the deceased’s young
daughter,
who must surely have been deeply traumatised by the experience.
The appellant left the house and returned home
where he told his wife
what had happened. He had been drinking and was intoxicated,
but admitted that he had been able to
appreciate what he was doing.
As mentioned, he pleaded guilty at the trial and showed every sign of
genuine remorse.
He was 43 years of age at the time of the
trial. He is married with four children and has no previous
convictions. A
correctional officer’s report indicated
that his family background was stable and supportive. After he
had lost his
employment in the context of the effects of industrial
action in 2004, his wife had been the principal breadwinner, although
he
applied himself in running a home business. He was
considered to be amenable to rehabilitation and a suitable candidate
for
correctional supervision.
[11]
The crime was committed in the heat of the
moment at a time when the appellant was emotionally charged and
evidently deeply hurt
by a callous rebuff from the person to whom he
had been looking for sympathy. While this in no way excuses his
conduct or
renders the needless death of Ms Mdekwana any less tragic
and horrific, it does afford a basis for understanding the
appellant’s
behaviour in a way that lessens the blameworthiness
attached to it. It was a crime of passion, not one of
gratuitous violence.
(In
S v
Mvamvu
2005 (1) SACR 54
(SCA), at para
13, Mthiyane JA noted that an essential characteristic of a ‘crime
of passion’ is that it is committed
‘
without
rational reflection whilst the perpetrator [is] influenced by barely
controllable emotion’.)
Courts have found
the commission of murder in such circumstances to found substantial
and compelling circumstances even when the
accused has subsequently
failed to show repentance or remorse, see
S
v Dumba
2011 (2) SACR 5
(NCK), although
I would, with respect, regard the finding in that case as
exceptional. There are other examples in circumstances
generally more comparable to the current case:
S
v Mngoma
2009 (1) SACR 435
(E), in
which the sentence imposed by the trial court was found to be
inappropriately lenient and increased on appeal, but its
finding in
the context of a crime of passion that substantial and compelling
circumstances existed to justify a departure from
the minimum
sentence was confirmed;
S v Makatu
2006 (2) SACR 582
(SCA) at para 15-17 and
S
v Engelbrecht
2005 (2) SACR 163
(W) are
amongst them.
[12]
Having regard to all the aforementioned
features of the case, the magistrate was wrong to have found that
substantial and compelling
reasons did not exist to depart from the
prescribed minimum sentence of 15 years. The imposition of such
a sentence was manifestly
disproportionate if proper regard were had
to the circumstances of the commission of the offence and the
personal characteristics
of the appellant. In the circumstances
it is necessary to set aside the sentence imposed and replace it with
one that does
justice to the case.
[13]
As noted, the crime of murder is of the
most serious category of common law offence. The determination
of an appropriate sentence
must appropriately reflect that.
Violence by men towards women is endemic in this country and the
opprobrium that the court
attaches to it must also be marked in the
sentence. The sentence imposed must moreover bear an
appropriate relationship to
the benchmark set by the prescribed
minimum sentence. I consider that a sentence of 10 years’
imprisonment, two years
of which being suspended on appropriate
conditions, would be fitting.
[14]
The following order is made:
1.
The appeal against sentence is upheld.
2.
The sentence of 15 years’
imprisonment imposed by the trial court on 22 September 2010 is
set aside and replaced by that
set out in paragraphs 3 and 4, below.
3.
The appellant is sentenced to 10 years’
imprisonment, two years of which are suspended for five years on
condition that the
accused is not convicted of an offence involving
the element of assault committed during the period of suspension for
which a sentence
of imprisonment without the option of a fine is
imposed.
4.
The substituted sentence is antedated, in
terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, to 22
September 2010.
A.G. BINNS-WARD
Judge of the High Court
RILEY AJ:
I concur.
J. RILEY
Acting Judge of the High
Court
[1]
Marais JA added the following significant rider in
para 23 of the judgment in
Malgas
:
‘
While speaking of injustice, it is
necessary to add that the imposition of the prescribed sentence need
not amount to a shocking
injustice (''n skokkende onreg' as it has
been put in some of the cases in the High Court) before a departure
is justified. That
it would be an injustice is enough. One does not
calibrate injustices in a court of law and take note only of those
which are
shocking.
’ The
statement of the law in para 22 of
Malgas
was
endorsed by the Constitutional Court in
S v
Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC),
2001 (3) SA
382
,
2001 (5) BCLR 423
, at para 40