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[2017] ZAWCHC 55
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S v Nakani (SS15/2015) [2017] ZAWCHC 55 (14 March 2017)

IN THE HIGH COURT OF SOUTH
AFRICA
(
WESTERN CAPE DIVISION, CAPE
TOWN
)
CASE
NUMBER
: SS15/2015
DATE
: 14 MARCH 2017
In
the matter between:
THE
STATE
and
LINDANI
NAKANI
Accused
SENTENCE
BOQWANA,
J
:
Introduction
The
accused was convicted of the murder of Busiswa Centane Rwayi (‘the
deceased’), committed under circumstances falling
within the
purview of section 51 of the Criminal Law Amendment Act 105 of 1997
(“The
Criminal Law Amendment Act&rdquo
;) in that the offence
that he committed was planned or premeditated.
The
considerations that the Court looks at when sentencing are
well-established.  In determining sentence, the Court has to

look at what has become known as the triad, namely, the crime, the
offender and the interests of society.  See
S v Zinn
1969(2) SA 537 (A) at 540G.
In
S v Rabie
1975(4) SA 855 (A) the Court stated that the
punishment should fit the criminal as well as the crime, be fair to
society and that
should be blended with a measure of mercy according
to the circumstances of the case.
Referring
to
R v Swanepoel
1945 (AD) 444, the court in
S v Khumalo
and Others
1984(3) SA 327 (AD) at 330 D-E held that deterrence
was the ‘essential’, ‘all important’,
‘paramount’
and ‘universally admitted’ object
of punishment.  It further held that the other purposes of
punishment are accessory
to deterrence.  The retributive theory
has to do with punishing a past wrongful act, whilst reformative,
preventive and deterrent
theories are all about the future, “
in
the good that would be produced as a result of the punishment
”
as observed in
Rabie
supra
at 862A-B.
It was pointed out by the Court in the
case of
R v Karg
1961(1) SA 231 (A) at 236A-B that while the
deterrent effect of punishment has remained as important as ever, the
retributive effect,
whilst by no means absent from the modern
approach to sentencing, has tended to yield ground to aspects of
prevention and correction.
The Court went on further to state
that if sentences for serious crimes are too lenient the
administration of justice may fall
into disrepute and injured persons
may be disposed to taking the law into their own hands.
Prescribed minimum sentence
The
legislature has prescribed minimum sentences in respect of a variety
of instances involving serious and violent crimes with
the
introduction of the
Criminal Law Amendment Act in
1997.
Section
51(1)
read with
Part 1(a)
of Schedule 2 of the
Criminal Law Amendment
Act prescribes
a minimum sentence of life imprisonment where murder
was premeditated or planned.
In
terms of
section 51(3)(a)
the Court may deviate from the minimum
sentence prescribed if it finds that there are substantial and
compelling circumstances
justifying imposition of a lesser sentence
than that which is prescribed.  In that regard, it shall enter
those circumstances
on the record of the proceedings and thereupon
impose such a lesser sentence.  For a Court to come to that
conclusion it must
consider the totality of the evidence before it,
together with other relevant factors traditionally taken into account
when sentencing,
together with the principles or purpose of
sentencing set out in the judgments I have referred to above.
In
the well-known decision of
S v Malgas
2001(1) SACR 469 (SCA)
the Supreme Court of Appeal (“the SCA”) set out how the
concept of ‘substantial and compelling’
circumstances
should be approached.  The Court summarised its approach at
470-471 as follows:
A.
“
Section 51
has limited but not
eliminated the court’s discretion imposing sentence in respect
of offences referred to in
Part 1
of Schedule 2 (or imprisonment for
other specified periods for offences listed in other parts of
Schedule 2).
B.
Courts are required to approach the
imposition of sentence conscious that the Legislature has ordained
life imprisonment (or the
particular prescribed period of
imprisonment) as the sentence that should ordinarily and in the
absence of weighty justification
be imposed for the listed crimes in
the specified circumstances.
C.
Unless there are, and can be seen to be,
truly convincing reasons for a different response, the crimes in
question are therefore
required to elicit a severe, standardised and
consistent response from the courts.
D.
The specified sentences are not to be
departed from lightly or for flimsy reasons. Speculative hypotheses
favourable to the offender,
undue sympathy, aversion to imprisoning
first offenders, personal doubts as to the efficacy of the policy
underlying the legislation,
and marginal differences in personal
circumstances or degrees of participation between co-offenders are to
be excluded.
E.
The Legislature has however deliberately
left it to the courts to decide whether the circumstances of any
particular case call for
a departure from the prescribed sentence.
While the emphasis has shifted to the objective gravity of the type
of crime and the
need for effective sanctions against it, this does
not mean that all other considerations are to be ignored.
F.
All factors (other than those set out in D
above) traditionally taken into account in sentencing (whether or not
they diminish moral
guilt) thus continue to play a role; none is
excluded at the outset from consideration in the sentencing process.
G.
The ultimate impact of all the
circumstances relevant to sentencing must be measured against the
composite yardstick (‘substantial
and compelling’) and
must be such as cumulatively justify a departure from the
standardised response that the Legislature
has ordained.
H.
In applying the statutory provisions, it is
inappropriately constricting to use the concepts developed in dealing
with appeals against
sentence as the sole criterion.
I.
If the sentencing court on consideration of
the circumstances of the particular case is satisfied that they
render the prescribed
sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society,
so that an injustice
would be done by imposing that sentence, it is
entitled to impose a lesser sentence.
J.
In so doing, account must be taken of the
fact that crime of that particular kind has been singled out for
severe punishment and
that the sentence to be imposed in lieu of the
prescribed sentence should be assessed paying due regard to the
benchmark which
the Legislature has provided.”
The concept of substantial and
compelling circumstances has not been defined in the legislation; it
has been left up to the courts
to decide, based on circumstances of
each case, as to what constitutes compelling and substantial
factors.  What is important
to note is that such circumstances
are not required to be exceptional in the sense of being seldom
encountered or rare. Departure
would be justified if there is
justification to do so, having regard to the weight of all the
relevant factors cumulatively.
In contrast it would be improper
to deviate from the minimum sentence purely for personal preference
of flimsy reasons.
Mitigating
and aggravating circumstances
:
The
accused did not lead evidence in mitigation of sentence, Mr
Theunissen presented factors to be taken into account when sentence

is considered, on behalf of the accused,
ex parte
and which he
argued should be regarded as substantial and compelling.  I have
also had regard to the evidence that was led
in the main trial by the
accused which is relevant to the consideration of mitigating
factors.  It would have been noticed
that a sizeable amount of
evidence relevant to the question of sentence was led during the main
trial.
The
State on the other hand, during the sentencing proceedings, led the
evidence of Nomvuyo Centane (‘Centane’), the
deceased’s
sister, and also pointed to factors that should be considered as
aggravating.  Mr Moeketsi submitted that
there were no
substantial and compelling circumstances warranting deviation from
the minimum sentence prescribed.
I deal with all the issues submitted
by the parties during the sentencing proceedings, as well as the
evidence that was led during
such proceedings and during the main
trial.
The
offender
:
The accused’s personal
circumstances.
The accused is a 38 year old unmarried
man.  He has two minor children aged 10 and 16, from different
mothers.  Prior
to his incarceration in relation to this case,
he worked as a policeman with the South African Police Service at the
Bellville
Railway Station, having started there in June 2010.
Before that he worked at Kuyasa Police Station in Colesberg. He had
been
there since 2008, having been transferred from Namaqualand.
He finished his matric and was also trained as a police officer
at
the Police College.  The accused has had a home in the Eastern
Cape.  It appears from the evidence in the main trial
that he
was a breadwinner to his Eastern Cape family.  Mr Theunissen
submitted that, as a police officer, the accused was
a good standing
member with no previous disciplinary records.  Captain Mandlakhe
Cryprian Ntshingila testified during the
main trial that as the
accused’s commander he never experienced any personal problems
with him and they got on well with
each other.  Departmentally
he was not aware of any complaints against the accused.  Colonel
Jacobus Phillip Fredericks
testified that the accused was a
disciplined member, very neat with his uniform. His private vehicle
was also neat inside out.
It was also submitted on behalf of
the accused that he attended church and was a worshiper.  The
accused sought to show in
the main trial by the questions he put to
the witnesses that what he did on the day of the incident was out of
character, evidenced
by, amongst other things, the manner in which
the firearm was left in the vehicle, which according to him, was
indicative of a
person who was acting abnormally. The accused has no
previous convictions.
The
accused’s emotional state
:
The
accused testified in the main trial that he suffered from severe
depression for which he has been receiving treatment over a
period of
time, i.e. since 2010, which he testified was caused by the stress in
the relationship initiated by the deceased.
He testified that
he was hospitalised for that condition on two occasions, being 2010
and 2012.  He sought a transfer to the
Eastern Cape to get away
from the situation with the deceased but his application was turned
down.  He blamed the management
of the police for not applying
their minds to the psychiatric report prepared by Dr Dhansay
motivating for his transfer and for
the situation he finds himself
in.
Mr
Theunissen submitted that even though the Court was not persuaded
that the emotional condition of the accused led to automatism
when he
was convicted, it still played a part as one of the factors to be
considered in sentence.
During
the main trial, evidence as well as argument was led extensively on
the emotional condition of the accused.  The accused
alleged
that he was ill-treated and abused by the deceased emotionally,
psychologically and socially from the beginning stages
of their
relationship.  He testified that he suffered in that
relationship for many years due to the deceased’s conduct.
He
testified further that when he moved from Colesberg to Cape Town in
2010, he did so on the strength of the deceased’s
commitment to
help financially, having advised her that he was building a house in
the Eastern Cape and that he could not afford
the rental in Cape
Town.  When he got to Cape Town, the deceased became a changed
person scolding and disrespecting him in
front of the children.
She did not keep to her financial commitment.  The two started
by sharing a rented flat in Kensington
with the two minor children of
the deceased, for which the accused contends he paid rent in full
with no help from the deceased.
They later moved to a house in
Delft.  Many fights and tempestuous incidents, which I need not
repeat, occurred during the
duration of the relationship, having
started even before the accused moved to Cape Town.  The accused
moved out of the Delft
house in 2012 to live at the police barracks
in Pinelands, although he states that he would go to the Delft house
on his off days
mainly because of Aqhama, the deceased’s
younger daughter with whom he had a close relationship and regarded
as his own daughter.
In fact he regarded both of the deceased’s
daughters as his own but was closer to the younger one. At some point
however,
he decided that he will never set foot at their house in
Delft again, after he was grabbed by one of the policemen that had
been
called by the deceased.  The policemen told him to leave
the house.
Perhaps
to highlight some of the incidents that occurred in the relationship:
The accused testified that the deceased failed to
disclose her HIV
status to him, which made him think that she was intending to kill
other people.  He discovered this in 2011
when the deceased laid
in hospital after being severely ill.  He nevertheless decided
to stay in the relationship. State witnesses,
Centane and Bongeka
Mhambi (‘Mhambi’) testified about how the accused sent
them messages or called them accusing the
deceased of infecting or
wanting to infect him or ‘the whole world’ with HIV.
The accused put to Mhambi during
cross-examination that he only sent
a message that the deceased was suffering from HIV and AIDS and was
evil.  Nevertheless
the accused was tested and found to be
negative.  The accused also testified about another incident
that occurred in October
2012, when he was living between the
barracks and the Delft house when he caught the deceased with a man
in a sexually compromising
position.  He stated that he heard
about many other affairs that the deceased had, which made him feel
humiliated and used.
He also testified that he was refused intimacy
by the deceased and concluded that she must be involved elsewhere.
According
to him, the deceased denied that she was having affairs
with other men.  The accused refused to admit that he did not
want
to see the deceased with other men or that he was jealous of her
or that he was annoyed by her behaviour.  He however confronted

her frequently about these alleged affairs and followed up on
information he received by phoning the alleged culprit.  The

accused once attempted suicide using his firearm.  He testified
that Centane once told him that he was obsessed with the deceased,

which he refuted.
The
evidence of the state witnesses Mhambi and Centane and that of the
accused's witness Vuyani Memani(‘Memani’) confirmed
the
tumultuous nature of this relationship.  Centane and Mhambi
relayed the deceased’s side of the story, saying that
she was
abused in the relationship by the accused and decided to get an
interdict.  At some point, the accused assaulted her
although
that matter was resolved and it, according to the accused, happened
in 2013 long before the interdict.  The interim
protection order
was handed in, in Court as an exhibit.
I
do not accept that the accused was the victim that he portrayed
himself to be in this relationship. At best, and on careful
assessment
of the evidence, both parties hurt or mistreated one
another in some way or the other.  The accused who confronted
the deceased
about the boyfriends that he alleged she slept with in
his house. He kept going to the Delft house even though he had moved
into
the barracks (I accept that he regarded the house at Delft as
his home too). At some stage he knocked at the window of the
deceased’s
bedroom until it broke, suspecting that there was a
man in the house. He once called a neighbour, by the name of Request,
to witness
an argument between him and the deceased and disclosed the
deceased’s HIV status upon being called crazy by her.
These
are but examples of things the accused said or did to the
deceased. I accept that the deceased may have done many things that
caused
the accused a lot of pain, but he kept going back to her even
after he moved out and found a place at the barracks.  If the

message was not expressed verbally by the deceased that the
relationship was over, the events that took place from the beginning

of the relationship and systematically over the years were telling
and would have made it quite clear to the accused that this

relationship was not working and he had a choice to walk away.
The
accused testified that the severe emotional stress he suffered for
over many years was aggravated by the interim protection
order that
the deceased obtained against him.  In this regard the issue
that drove him to the state of emotional disintegration
was the fact
that he had to hand in his service pistol, after being unsuccessful
in convincing the magistrate that his firearm
be excluded from the
interim order, on the return day of the hearing of the application of
the protection order, i.e. on 3 July
2014.  It will be recalled
that, according to the accused, having his firearm on his person
which was his working tool was
important because without it he could
not work overtime.  The benefit of overtime is that he needed
the money he received
for overtime for his family financial
responsibilities.  According to the accused, the interdict
reminded him of all the things
he had been through with the deceased
over the years and it triggered and created a state of heightened
emotional stress that led
him not to act rationally by shooting and
killing the deceased.
According to Mr Theunissen, the
accused landed in a relationship which caused dysfunctional behaviour
from time to time and although
it would have been very wise for him
to leave the relationship, it was difficult for him to walk away even
after discovering infidelity
and a number of other things which
caused great emotional reaction for him.  He was ill and had to
be given time off from
work many times.  According to Mr
Theunissen, this emotional factor is substantial and compelling on
its own for the Court
to take into account.
The nature of the offence
The accused has been convicted of a
very serious offence.  The particular circumstances surrounding
the killing of the deceased
in this case are gruesome and need some
special mention.  The evidence indicates that the deceased was
killed in a cruel manner
by use of a firearm belonging to the
accused.  According to Constable Vuyolwethu Mini (‘Mini’),
he collected 19
exhibits on the scene which comprised 4 bullets and
15 cartridge cases.  Benedict Terrence Hill(‘Hill’)
testified
that during the examination of the vehicle of the accused,
fired bullets were found in the vehicle.  Hill examined 15
cartridge
cases and four fired bullets he received and concluded that
they came from the same firearm, a 9mm Z88 semi-automatic.
Both
Mini and Hill testified that a 9mm Z88 semi-automatic pistol was used
by the members of the SAPS.  It is designed to carry
15 rounds
of bullets, but it was possible for it to carry 16 in total by
putting an extra bullet into the chamber of the weapon.
Hill
agreed that it could be concluded that if the firearm carried 15
rounds, the fired cartridges would have been fired from the
empty
magazine that was found next to the firearm.  It was not
disputed by the accused that the magazine carried 15 rounds
and that
the entire magazine was emptied by firing all the bullets that were
contained therein onto the body of the deceased.
Hill
testified further that he observed during the autopsy that the
deceased had bullet entry and exit wounds on the right arm and
the
right and left side of the stomach area as well as on the back and
buttocks.
Dr Estavao Bernardo Afonso’s
evidence, who conducted the post-mortem of the deceased, revealed a
vicious attack on the deceased.
His testimony was that there
were 42 gunshot wounds on the body of the deceased, comprised seven
perforating gunshots on the right
arm of the deceased translating
into fourteen wounds consisting of seven entry and seven exit wounds,
sixteen entrance and re-entrance
wounds to the right side of the
torso and twelve on the left side of the torso.  According to
him, the deceased died of multiple
gunshot wounds.  Seven
projectiles were recovered, i.e. three from the clothing and four
from the body.  The internal
injuries observed included bowel
perforation, laceration of the kidney, fracture of the forearm,
pelvis and the tenth rib.
The fourteen
wounds
present on the right forearm meant that the weapon was fired seven
times on the right arm. Therefore, seven bullets entered
and exited
the arm.  Some of those bullets re-entered the body through the
pelvis and the abdomen.  Other wounds were
from direct shots
into the abdominal wall, the chest, the lower back, the pelvic and
the hip area as well as the buttocks of the
deceased.  Two of
the gunshot wounds that went through the tenth rib literally
fractured and broke the tenth rib.
The
force of the gunshot also injured the right lung causing the bruise
on the lung resulting in a little bit of blood around the
lung.
The wounds were about 6 to 7 millimetres in size.  It appears
that the abdominal area of the deceased was completely
damaged with
the pelvic walls fractured and one gunshot injuring her uterus.
Dr Afonso testified that given the extensive
nature of the wounds
even if the deceased had received immediate surgical treatment, he
doubted that the surgery would have had
a positive outcome. Therefore
the deceased had very little chance of surviving, if any.  The
post-mortem findings illustrate
the dreadful nature of the killing of
the deceased.
The
killing of the deceased was found to have been planned.  As
stated in the main judgment, on 25 June 2014, the accused,
who was on
leave, was called to the Bellville Police Station and informed about
the interim interdict.  Crucially, the orders
contained in the
interim protection order were,
inter alia
, that he was not to
assault or threaten to assault the deceased and the children nor use
foul, insulting or abusive language, nor
harass them; that he was not
to enter the deceased’s residence/premises at Delft and that
his firearm was to be seized by
a police officer in Pinelands.
The
accused testified that when he was asked about the firearm by the
police officer that served the interim order on him on 25
June 2014,
he told the police officer that his firearm was at his workplace
because he was under the impression that it was there,
as he
ordinarily would have not taken it when he was not on duty.  He
testified that he only discovered it on the morning
of the return day
of the protection order, i.e.3 July 2014 which was the morning he was
due to appear in Court.  The explanation
that he gave for him
only discovering the firearm on that day was that he was planning to
work the nightshift on that day and he
would normally cut his hair
before he goes to work.  When he opened his safe at the barracks
where he kept his Q20 oil which
he used to lubricate his hair cutting
machine, he discovered that the firearm was with the Q20 oil in the
safe.  He decided
that he was going to return the firearm on the
evening when he went to work for his nightshift.
I
found that the accused’s compliance with the interim Court
order did not seem to be foremost in his mind.  He could
have
been more vigilant in his actions if he wanted to comply with the
Court order. Firstly, by ensuring that the firearm was definitely
at
his workplace and handing it over to a police officer (in Pinelands)
as required by the interim protection order or at Bellville
Police
Station if that was not the procedure that was allowed or
applicable.  Even if it were to be accepted that he only

discovered it on the morning of 3 July 2014, having learnt that it
was not at the workplace as he thought it was, it was incumbent
upon
him to immediately take it to the police station and hand it in that
morning.  He admitted that the Bellville Police
Station was
right across the street from the Bellville Magistrates Court where he
was due to appear that morning.  He instead
left the firearm at
the barracks when he attended Court.  According to him, he
thought he could convince the magistrate that
the firearm should be
excluded from the interim protection order.  Having failed to
convince the magistrate, the first thing
would have been to take the
firearm immediately to the police station at either Pinelands or
Bellville so as to comply with the
Court order forthwith, before
going to hospital, which was his alleged destination. He could still
drive.  The accused, however,
did not do that.  That, as I
found, led to an inescapable conclusion that the accused did not want
to return the firearm.
Even if he was on his way to hospital to get
himself admitted as he says he was, he did not call his commander to
dispatch someone
to fetch the firearm at the barracks or even to meet
him at the hospital as he alleged that to have been the plan.
Furthermore,
his reason for taking the firearm with him to hospital
was to comply primarily with the Provincial Procedure which
stipulates that
police officers are not allowed to have their
firearms in their possession if they are to lay in hospital for a
long period of
time and not to comply with the Court order.
The accused took a firearm loaded with
a full magazine with him and landed up in Delft.  Whether the
planning to shoot the
deceased was done whilst driving with an
intention to go to hospital or he changed his mind along the way is
not relevant.
What is relevant is that he drove to Delft with a
loaded firearm ,he then got out of the vehicle, had a conversation
with the deceased
asking her what is it that she wanted from him now.
According to him, he was insulted by the deceased and thereafter he
did not
know how he drew his pistol and what happened thereafter.
He however admits that the deceased died in his hands because the

firearm was in his possession.  He did not dispute that he fired
the shots, emptying the whole magazine that carried 15 rounds
of
bullets.
Impact of the deceased’s
death on the family
Centane, the sister of the deceased,
testified that the deceased had two minor daughters who are seven and
sixteen years old respectively.
The children had been staying
with her since their mother’s passing in 2014.  Since
December 2016 the father of the
youngest child decided to take the
child.  She had been maintaining both children until the father
of the youngest took her.
Centane testified that it was up to
the Court to impose a sentence that it considered appropriate.
She had forgiven the accused
but she would not forget what happened.
Interest of society
Domestic
violent cases are prevalent in our society.  Many cases
involving murder or violent crimes between husbands and wives
or
those in intimate relationships are too frequent in our courts.
In
Kekana v The State
(629/13) [2014] ZACSA 158 (1 October
2014) Mathopo AJA (as he then was), remarked at para 20 as follows:
“
Domestic
violence has become a scourge in our society and should not be
treated lightly.  It has to be deplored and also severely

punished.  Hardly a day passes without a report in the media of
a woman or a child being beaten, raped or even killed in this

country.  Many women and children live in constant fear for
their lives.  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
when this court said the
following:
‘
Women in
this country… have a legitimate right 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 diminish the quality and the enjoyment of their lives.’”
It
is aggravating that the accused was a trained police officer who had
a duty to protect the community and enforce the law.
Police
officers are particularly enjoined to protect vulnerable members of
the society from domestic violence and abuse.
They are expected
to do all they can to assist defenceless victims of those
relationships.  The power they have is not to
be used to attack
helpless members of the public, let alone those in close
relationships to them, no matter how sour those relationships.

In the situation in this case the deceased was vulnerable and
unarmed.
What
is more concerning and serious is that the deceased had done all she
could in terms of the law to protect herself.  She
had gone to
Court to seek protection for herself from the accused.  Whether
or not the interim protection order was warranted
is not the issue.
The issue is that it existed.  The deceased, for her own
reasons, saw it fit to approach the Court
and ask for protection
against the accused and she was granted that protection by means of
an order that prohibited the accused
from going to their house in
Delft and from carrying a firearm.
The terms of the protection order were
to protect the deceased against the very same conduct that was
perpetrated on her by the
accused.  According to the accused,
the deceased told the Court that morning that she did not feel safe.
The interim
protection order stated that the accused should not go to
their house in Delft and secondly that his firearm should be seized
by
a policeman.  The accused breached both of those orders and
did the opposite of what he was told and expected to do by the

Court.  He did precisely what the interdict sought to prevent.
The question of diminished criminal
responsibility
In
some cases, while non-pathological criminal incapacity was rejected
as a defence, it was still found to have had an overwhelming
effect
on the conduct of the accused.  In
Director of Public
Prosecutions, Transvaal v Venter
2009(1) SACR 165 (SCA) at para
22, Mlambo JA (as he then was) went through a series of cases of the
SCA that dealt with this issue
such as
S v Laubscher
1988(1)
SA 163 (A) where the Court found the appellant to have acted with
diminished criminal responsibility and suspended half
of his six year
sentence.  The appellant, in the
Laubscher
case, had
fired a total of 21 rounds from his pistol in his parents-in-law’s
house having been denied access to his child.
A criminal
psychologist and a psychiatrist testified on his behalf that he had
been undergoing severe stress as a result of his
rejection by his
parents-in-law as well as his inability to have access to his child.
Mlambo JA referred to various other
decisions involving similar
scenarios.  It is not necessary to mention all of them save to
say that Mlambo JA noted that these
judgments were decided at the
time when it was ‘business as usual’ and the sentencing
discretion of the courts as yet
unfettered by the minimum sentencing
legislation as is currently the case.
Mlambo
JA accepted in the
Venter
case
supra
that the appellant
experienced ongoing stress caused by the incident that occurred in
Burundi involving the rape and murder of a
14 year old girl, which he
was incarcerated in prison for.  This was exacerbated by alleged
advances of a fellow officer to
his wife.  The appellant had
prior to the incident showed suicidal tendencies.  On the day of
the incident he consumed
a lot of alcohol.  The Court accepted
that the appellant had lost some sense of objectivity.  He had
also suppressed
his memory of what happened in Burundi as he could
not come to terms with it.  The Court found that the appellant’s
lack of objectivity cannot be viewed in isolation.  The
appellant behaved in a manner that showed a state of mind suggesting

that everything had revolved around him and any action by his wife
and children interpreted by him as amounting to them leaving
him,
justified murdering them.  The Court was of the view that the
trial Court gave insufficient weight to the seriousness
of the
crime.  The appellant killed his wife and children brutally.
The Court observed that it was in the interest of
society that
persons who commit such serious offences are appropriately
sentenced.
In
that case, the Court found that the matter called for a sentence that
took cognisance of the appellant’s personal circumstances,
the
seriousness of the offences and the need for severity and deterrence,
the latter element is at the core of the community interest
in how
courts should deal with violent crimes.  It increased the
sentence given by the lower Court to 18 years.  In that
instance
the prescribed minimum sentence was 15 years.
In
a separate judgment, concurring with Mlambo JA, Nugent JA concluded
as follows at para 70:
“
It is tragic
whenever a man reaches a stage of despair that resigns him to suicide
but the law would fail if it did not make it
absolutely clear that
his wife and children are not his property to take with him to
eternity.  I said earlier that but for
the respondent’s
considerable despair the proper sentence would have been life
imprisonment.”
In
S v Mgibelo
2013(2) SACR 559
(GSJ) an accused who had been in a previous relationship with the
deceased set fire on a shack where her ex-boyfriend,
the deceased in
that case, was sleeping with his girlfriend after dousing it with an
inflammable liquid.  The deceased died
of burn wounds.  The
Court found the accused had planned deliberately to set the fire.
It held at para 9:
“
[a]n
essential characteristic of a crime of passion is when an offence is
committed ‘without rational reflection whilst the
perpetrator
was influenced by a barely controllable emotion’”.
(See
S v Mvhamvhu
2005(1) SACR 54 (SCA) at para 13).
The
court went further to say that:
“
This case is
accordingly distinguishable from a typical scenario ‘in which
an accused reacts spontaneously to perceived provocation,
driven by
anger, without sufficient time to consider his actions. In this case,
the accused did not unexpectedly and shockingly
discover the deceased
with the complainant.  By her own version, she was aware of
their relationship.  By her version,
the deceased had a history
of numerous love relationships.  The accused and the deceased
were not married.  The accused
had no obligation to stay in her
relationship with the deceased but could have moved on with her
life.
[10]
On the occasion of these incidents she went looking for the
complainant and had wanted the deceased to publicly denounce their

relationship.  She must have known, as the State witnesses
testified, that the deceased did not love her anymore.”
The
Court found there to be no substantial and compelling circumstances
and imposed a sentence of life imprisonment.  Another
important
case is that of S v
Dikana
2008(2) All SA 182(E) where
the court rejected that the offence in that case involved a crime of
passion.  At para 7
it observed that a period of some three
hours had elapsed between the perceived provocation and the murder
and the intention to
murder was formulated at least two hours before
the commission.  The accused in that case felt undermined and
angry when he
suspected his girlfriend was having sexual intercourse
with another man.  He said he felt dizzy and walked away
thinking about
what to do.  He secured a bottle, filled it with
paraffin and told a witness he was considering burning the two
deceased.
He then set alight a shack they were in, killing
them.  The Court found that the accused acted with premeditated,
purposeful,
sustained control and efficiency of execution throughout.
It confirmed sentences of life imprisonment on the murder charges.
Then
in
S v Mngoma
2009(1) SACR 435 (E) at para 6 and 7, the appeal
Court found the killing was not an immediate response to the
provocation of infidelity.
It was not an almost uncontrollable
act of violence provoked by the discovery of a lover caught
red-handed in an act of adultery.
The Court increased a
sentence from 5 to 12 years.  In that case the prescribed
minimum sentence was 15 years imprisonment
as premeditation was not
proven and a plea of guilt was accepted that the murder was committed
with a form of intention known as
dolus eventualis
.  The
State agreed that there were substantial and compelling circumstances
justifying departure from the minimum sentence
such as the age of the
accused (in that case  24 years), education, lack of previous
conviction, confessing to his employer,
handing himself to the
authorities and pleading guilty.
In
a more recent SCA decision of
S v Kekana
supra
which
involved the murder of a wife by her husband, the appellant, (the
accused in the court
a quo)
had pleaded guilty and gave a
statement explaining how the offences of murder and arson were
committed.  The appellant and
the deceased had a tempestuous
relationship as in this case.  The appellant accused the
deceased of extramarital affairs and
the parties quarrelled
continuously, like in this case.  They threatened to kill each
other and the deceased told him on several
occasions to pack his
belongings and leave the common home.  On the day of the
incident he set the house alight having locked
the deceased in the
bedroom.  The appellant having been incensed by finding some of
his clothes packed in a bag, he confronted
the deceased, went outside
to fetch petrol that he had bought, in his version, for putting in
his vehicle and poured the petrol
on the bed in which the deceased
was lying.  When asked by her what he was doing, he said that
that was the night she should
die.  He continued to spill the
petrol in the passage, kitchen and dining room and set it alight.
When he saw the flames
he drove to Booysen’s Police Station and
reported his conduct.  He pleaded guilty and the statement he
made was accepted
by the State and he was convicted.  It was
argued on behalf of the appellant that the trial Court erred in
finding that the
murder was premeditated.  The submission was
that the appellant had acted in a spur of a moment and was burning
with rage
when he killed the deceased by setting fire to the house-
it was only when he saw his packed clothes that he decided to kill.

The killing, it was argued, was thus not premeditated.
The
SCA found that the relationship was a turbulent one characterised by
accusations of infidelity.  It found that it was not
the first
time that the deceased had packed the appellant’s clothes into
a bag and left them at the door.  The appellant
dealt with such
incidents before without any fatal consequences.  It was
difficult to understand how the fact that he found
his clothes packed
in a bag and placed near the dining room could have triggered anger
such as to lead to the death of the deceased.
It was argued in
Kekana
supra
that there were substantial and compelling circumstances to deviate
from the sentence of life imprisonment in that the accused
had
pleaded guilty; had shown remorse for his actions; was a first
offender and therefore there were prospects that he could be

rehabilitated and also that he was in a turbulent relationship with
the deceased where lack of trust played a major role; he felt
abused
and belittled by the deceased and that when his clothes were packed
in a bag in the dining room he felt provoked and snapped.

Despite all those factors, the Court found that the cruel and painful
death of the deceased at the hands of her husband, the fact
that she
was killed in the one place that she ought to have been safe, the
sanctity of her home, were aggravating.  Worst
of all, after the
house was set alight he failed to rescue her and secure medical
assistance for her.  The Court found that
the callous and
heartless attitude in not checking the condition of the deceased was
clear proof of his lack of remorse.
It agreed with the trial
Court that this conduct did not manifest genuine remorse in the
manner described in
S v Matyityi
2011(1) SACR 40(SCA) at para
13.  Talking about
S v Matyityi supra,
there is an
important issue that was not touched on by Mr Theunissen when
submitting mitigating factors and that is a question
of remorse.
Perhaps, it is convenient to deal with that issue now.
Remorse
The accused throughout his evidence
indicated that he was remorseful and regretted what had happened.
The Court is
S v Matyityi
supra
at para 13 examined the
question of remorse by stating the following:
“
...There
is, moreover, a chasm between regret and remorse.  Many accused
persons might well regret their conduct, but that
does not without
more translate to genuine remorse.
Remorse
is a knowing pain of conscience for the plight of another
.
Thus genuine contrition can only come from an appreciation and
acknowledgement of the extent of one’s error.  Whether
the
offender is sincerely remorseful, and not simply feeling sorry
himself or herself at having been caught, is a factual question.
It
is to the surrounding actions of the accused, rather than what he
says in court, that one should rather look.  In
order for the
remorse to be a valid consideration, the penitence must be sincere
and the accused must take the court fully into
his or her confidence.
Until and unless that happens, the genuineness of the
contrition alleged to exist cannot be determined.  After all,

before a court can find that an accused person is genuinely
remorseful, it needs to have a proper appreciation of,
inter
alia,
what motivated the accused
to commit the deed; what has since provoked his or her change of
heart; and whether he or she does indeed
have a true appreciation of
the consequences of those actions…”
(Own emphasis)
In
Matyityi
supra
the Court increased the sentence from 25
years to life imprisonment on the basis,
inter alia,
that the
respondents conducted themselves with a flagrant disregard for the
sanctity of human life or individual physical integrity.
They
acted in a manner that was unacceptable in any civilised society
particularly one that ought to be committed to the protection
of the
rights of all persons including women (See para 24).
In
the present matter, the accused went to the police to report himself
after the incident.  He phoned his commander and his
brother and
told them that he had killed the deceased shortly after the
incident.  When he had to testify however, he told
the Court
that he did not remember shooting the deceased and all that happened
on that day.  One wonders if he was truly remorseful
for his
actions as he did not take the Court fully to his confidence
regarding what happened on the day of the incident.
It is
concerning that his memory was selective on very crucial aspects of
the incident, especially on parts that tended to be incriminating,

such as why he drove to the deceased’s house if he meant to go
to the hospital, but suddenly remembers when he got to the
deceased’s
house in Delft and parked his vehicle and spoke to the deceased.
His memory then again disappears shortly
thereafter with ‘lights
going off’ on the crucial part of the case which is the
shooting incident.
What
also bothers me is that the accused does not seem to take full
responsibility for his actions.  Yes, he does acknowledge
that
someone passed on in his hands, but yet he continued to shift the
blame to the deceased: that had she not cheated on him,
slept around
with boyfriends and did all the things she did and finally obtaining
an interdict against him, he would not have been
faced with the
situation he is now.  That does not strike me as someone who
understands the plight of another to the point
of being truly
contrite for his actions.
The
accused also blamed the family of the deceased for conspiring against
him, and the management of the police for not giving him
a transfer
to the Eastern Cape and if they had given him the transfer based on
the motivation by Dr Dhansay regarding his emotional
state, he would
have been away from the deceased and would not have been faced with
the situation he is faced with now.  The
blame was continuously
laid at everyone else’s feet for putting the accused in the
situation he finds himself in.
That, in my view, colours the regret
that the accused says he has and puts question marks on whether
indeed his penitence and sorrow
is genuine for the plight of the
deceased and for her demise.  The deceased was also still a
relatively young woman, at 37
years old, with a future ahead of her.
She was a productive member of the society, working with a house and
owning a motor
vehicle.  She was also an independent, single
mother with children.  She is lost to her family and friends,
untimely
so.
Are
there substantial and compelling circumstances
?
Against
the background of all the cases I have referred to, it must be
accepted that the accused was devastated by the interim protection

order against him primarily because he had to surrender his firearm
and in turn lose out on overtime pay which he needed to help
meet his
financial situation, for which he blamed the deceased.  As was
observed in the cases I have referred to above, the
action of the
accused, (i.e. the shooting of the deceased), did not happen in a
spur of a moment as a spontaneous reaction to provocation,
driven by
anger or other emotion where the accused had no sufficient time to
consider his actions.
The
accused testified that the trigger to his action was the interdict.
Although he says he was insulted by the deceased prior
to the
shooting, he does not say his reason for acting in the manner he did
that day was the insult. He says it was the interdict.
In any
event, it could not have been the insult itself that he reacted to
because, on his own version, he had been insulted many
times before
by the deceased and he never shot her.
Furthermore,
it appears to me that he went to the deceased’s house already
feeling provoked about the interdict and knowing
what he wanted to do
when he got there.  He started by confronting her about the
interdict asking “what do you want
from me now”.
It
is noteworthy that the accused knew about the interim interdict for
just over a week before the incident.  In other words
he did not
only learn about the interdict on 3 July 2014.
When
his request to exclude the firearm from the interdict was not granted
in court on 3 July 2014, he sat in his vehicle a bit,
drove to the
barracks, thought he should admit himself to hospital, took sleeping
clothes, his firearm and two magazines and drove
to the deceased’s
house.
In
my view, there was a delayed reaction as opposed to a spontaneous
one.  Although a delayed reaction may not necessarily
eliminate
the effect of provocation it waters it down considerably.  (See
S v Mngoma
supra
at para 6). The accused had time to
reconsider his actions.
What
also distinguishes this case from the so-called ‘
crimes of
passion’
is the element of premeditation or planning that
is present.  This case possibly borders on the category of
‘
crimes of vengeance’
as opposed to those of
passion.  On his own version, the accused and the deceased were
no longer in a relationship
per se
.  He went to tell her
not to refer to him as her boyfriend, accompanied by two policemen at
one point.  He told himself
he would never set foot in their
house in Delft again after he was told to leave and manhandled by the
policemen that were called
by the deceased.  He did not know why
there was a need for an interdict as there was no real communication
between him and
the deceased then. He testified that the deceased and
her family conspired to have his firearm taken from him. Therefore
whilst
it should be accepted that the accused acted out of emotion it
was not a spontaneous act that occurred in a spurt of uncontrollable

anger.  At least there is no evidence to support that.  A
period lapsed, as I have already stated, between the Court
appearance
and the shooting incident.
A
striking feature between the
Kekana
case
supra
and this
case is the relationship that was filled with turmoil over a period
of time.
In
the present matter, the accused had over a period of time been in
situations where his emotions were heightened.  A situation
in
point was when he caught the deceased with another man.  He had
his firearm with him then, he was also devastated by what
he saw but
he did not react by shooting at the deceased or the man he caught her
with.  I understand that the distinction
in this instance was
that there was no interdict at the time requiring his firearm to be
returned, however his state of emotional
distress had been heightened
on many occasions before.
There
are a number of niggling factors in my mind including those I have
already canvassed.  The accused was not married to
the deceased,
they had no biological children together.  Nothing bound the
accused in this relationship, he could have moved
on taking into
account that the relationship was troubled from day one.  Whilst
I am mindful of the tumultuous nature of the
relationship, I am
unable to agree that the tragic consequences were unavoidable when
the accused had a choice and was advised
by a work colleague and some
of those close to him to leave the relationship.  If the
deceased was this ‘horrific’
human being that she was
painted to be by the accused in this Court, in whom he had lost
interest, he should have left her.
The
accused admittedly did not deal with the stress he suffered as he
should have.  He only attended one or two counselling
sessions
between the period of 2010 and 2012.  He also did not avail
himself to lawful remedies to deal with conflict.
He resorted
to solving the disputes between him and the deceased by killing her.
The
deceased on the other hand followed the law by seeking protection
against him when she approached the courts for an interdict.
What she
sought protection from happened the very same day of the court
appearance on return day, orchestrated by an accused person
who is a
trained policeman and a law enforcement officer, choosing to defy a
court interdict, first by not returning for the firearm
and second by
going to the very place he was prohibited to go to.  The
question that rings in my mind is what else could the
deceased have
done to protect herself?  Once again, this is not to say the
interdict was warranted, if it was not, the accused
was well within
his rights to challenge it in Court.  The return day was
postponed or extended only for a few weeks to 30
July 2014.
What is also concerning is that the deceased did not go to the
accused or confront him about whatever issues she
had with him that
caused her to seek an interdict, he went to her.
It
is troubling that the entire magazine was emptied on the deceased
considering that a trigger had to depressed for each shot.
This
is not a case where the firearm was depressed once and fired shots
automatically.  Furthermore, the accused did not shoot
one or
two shots because he could not control himself after an altercation.
He emptied the entire magazine on the deceased after
he was ordered
to stay away from her.  It is evident that the accused intended
to ensure that she was finished or had no chance
of making it.
From the emptying of the magazine it could be deduced that the
accused wanted to ensure that the deceased got
killed.  I have
already found that the intention was direct.  He further went
there with a fully loaded firearm having
failed to return it as per
the Court order.  The deceased was flooded with 15 bullets,
causing 42 wounds ravaging mainly her
right arm and the torso area of
her body.
The
accused did not try to rescue the deceased after the shooting nor
seek help or medical assistance for her, as a true sign of
showing
remorse about what he had done.  It is the neighbours that tried
to seek help for the deceased.
Mogammat
Sedick Davids, the deceased’s neighbour who testified in the
main trial, stated that a man driving a white vehicle
after the
shooting had taken place came back to the scene and felt the pulse of
the deceased and said she is gone and went back
to his vehicle and
drove off.
Having
outlined all the factors, I am of the view that aggravating factors
outweigh mitigating factors in this case.  Reasons
for that are
evident from what I have outlined above.  I have taken into
account the accused’s personal circumstances;
his emotional
condition which he says got the better of him that day.  In that
regard I have found that he had choices to
move away and had time to
reconsider his actions.  Furthermore, as I have shown he did not
take the Court into his full confidence
in the main trial.
I
am mindful that the accused is relatively still a young man who was
financially supporting his family and a first offender and
that he
embroiled himself in a situation that led to tragic consequences.
He struck me as an intelligent man during the trial.
With all
those personal factors and the history of the relationship between
the accused and the deceased, I cannot ignore aggravating
factors
which are screamingly louder, including but not limited to, the
nature of the offence, the fact that the accused was a
policeman, who
had a duty to uphold the law, that he had defied a Court order by not
returning his firearm and by going to the
deceased’s house and
committed the offences shortly after appearing in Court, and that he
planned the killing of the deceased
and that he used all the bullets
in the firearm to kill the deceased ensuring that she had no chance
of surviving. I am aware that
the accused has young children who
would be growing up without having a father present in their daily
lives.
The
Court is however confronted with a serious and a violent crime.
It is so prevalent that there is a special focus in our
country
dedicated to dealing with violence against women and children.
Some fail to use the available means of resolving
conflict and are
quick to resort to violence that even leads to deadly consequences.
In
this case, the deceased sought to protect herself from being killed
by means of a protection order.  Protection orders are
there to
assist the vulnerable who are victims of domestic violence and
harassment.  They are there to prevent reoccurrence
of such
conduct by stating what the alleged perpetrator should refrain from
doing.  The accused defeated that whole object.
A
clear message must be sent by our courts that when an interdict
cannot assist those seeking protection and the whole purpose is

defeated, leading to the death of a victim the law will take its full
course.  Violence as a means of resolving conflict has
no place
in our democratic society.
In
view of all the factors, cumulatively, I find there to be no
substantial and compelling circumstances to deviate from the minimum

sentence ordained for this type of crime.
In
the result I make the following order:
The
accused is sentenced to life imprisonment in respect of the count of
murder.
In
terms of the
Firearms Control Act 60 of 2000
, the accused is unfit
to possess a firearm.
___________________________
BOQWANA, J