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[2018] ZAWCHC 90
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S v Pretorius (CC05/2018) [2018] ZAWCHC 90 (14 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(SOUTHERN CIRCUIT LOCAL DIVISION,
SWELLENDAM)
[
REPORTABLE
]
CASE
No: CC05/2018
In
the matter between:
THE
STATE
vs
VIRGIL
PRETORIUS
Accused
SENTENCING JUDGMENT: 14 JUNE 2018
HENNEY, J:
INTRODUCTION
[1]
When considering an appropriate sentence, the court should have
regard to all relevant facts as well as the circumstances of
a case,
especially the factual matrix which underpins such a case and
thereafter consider such facts against the aims of punishment
and the
Triad.
[2] The following are specific aims of
punishment mentioned by our authorities in Criminal Law e.g.
deterrence, retribution, rehabilitation
as well as prevention.
In a modern criminal justice system, the specific aspects of
retribution are starting to play a lesser
role, more especially so in
a constitutional dispensation and democracy such as ours. There
is much greater emphasis on prevention
and rehabilitation. In
the recent past, however, due to the spiraling rate of crime in this
country there has been greater
emphasis on deterrence and
retribution. The court will refer to this discussion at a later
stage. It is for these reasons particularly,
that the legislature has
thought it appropriate to enact certain prescribed sentences for
categories of crime as mentioned in the
Criminal Law Amendment Act
105 of 1997
. The sentences that the court must impose in this
case on count four, falls squarely within the ambit of the
legislation.
The court will expound upon this matter later in the
judgment.
THE
TRIAD
[3]
The triad of factors that has to be considered when the court
considers sentencing is set out in
S v
Zinn
1969 (2) SA 537
(A)
. These factors
in my view are very important and must be considered in this matter.
[4]
That is, the personal circumstances of the accused, the offence(s)
that he has committed, and lastly the interest of society.
[5] I will now deal with the personal
circumstances of the accused, as highlighted by his legal
representative Mr. Du Toit.
PERSONAL
CIRCUMSTANCES OF ACCUSED
[6] The accused is a 33 year old male.
He is married but separated, and the father of 6 children, 3 with his
wife from whom he is
separated, 1 with the deceased, and 2 others
from another woman staying in Cape Town. The children he has with his
wife are respectively
14, 9 and 2 years old respectively. The one
child with the deceased is 3 years old, and the other two with a
woman from Cape
Town is 6 years, and another who is 2 years old
.He has one previous conviction for Assault that he committed
on 14
July 2014, for which he received an admission of guilt fine of
R500. The complainant in that matter was his wife. The accused has
obtained a matric certificate and thereafter, joined the South
African Police Service in 2009, and held the rank of Constable.
He
resigned after his arrest for this matter.
THE
OFFENCE
[7]
The offence that he committed is without any doubt, a very serious
one. Murder is regarded as such a serious offence
that it
falls within the categories mentioned in the schedule of Act 105 of
1997, especially where such murder was premeditated.
[8]
It is for this very reason that the legislature, under the
circumstances prescribed that the sentence of life imprisonment
should be imposed, unless, the court finds that there are other
substantial and compelling circumstances to deviate from the
prescribed
sentence. The court will deal with this aspect at a later
stage. The crime of murder in itself has since time immemorial been
considered
by our courts as a very serious offence, and rightly so.
[9]
For the very reason that our courts, and society considers human life
as being precious and more particularly so in a democratic
and
constitutional dispensation such as ours, where the right to life is
guaranteed and regarded as sacrosanct. Any sentence, which
a court
imposes, should send out a very clear message that the life of
another human being is not cheap.
[10] The court considers the
circumstances under which the murder of the deceased in this matter
was committed, as extremely aggravating.
And I say this for the
following reasons;
1)
The accused was in a relationship with the
deceased that was characterized by physical and psychological abuse;
2)
She was under constant threat by him;
3)
He clearly exercised control and power over
her;
4)
He disregarded her rights as a human being,
by undermining her freedom, dignity, freedom of association and
self-worth.
All
of this is apparent from the evidence that was lead during the trial,
his version and most importantly, the audio clips.
[11]
I am in agreement with the prosecutor that the accused showed total
disregard for the sanctity of her life. Especially, after
he had
murdered her, he dumped her body in the bushes, where it was nearly
impossible for anybody to find. .
[12]
If regard is to be had to the manner in which he murdered the
deceased, it becomes clear that he wanted to kill her. The degree
of
violence, he perpetrated against her was excessive, overwhelming and
exhibits horrifying aggression. It is not clear what possessed
the
accused to perpetrate such a ghastly deed to bring the life of the
accused to an end.
[13]
The extent and amount of violence used to murder the deceased, was
clearly out of proportion, senseless and induces a sense
of shock and
horror.
[14]
This matter once again highlights the plight of vulnerable women in
our society, who are often, unable to defend themselves
against their
violent partners, becoming one of those horrible statistics.
This happens almost on a daily basis in our country
In
Mudau
v S (547/13)
[2014] ZASCA 43
(31 March 2014) Mathopa JA
at para [6] said the following in this regard:
“
[6]
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]
ZASCA 45
;
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”
[15]
Similarly, in the matter of
S
v Van Staden (KS21/2016)
[2017] ZANCHC 21
(20 March 2017)
it was
held:
“
[14] Murder
committed by a man on a woman should not be treated lightly. It
becomes worse where the perpetrator, as in
this instance, was the
deceased's partner, who had the duty and the responsibility to
protect her and not to harm her. It is
killings like the
one committed by the accused which necessitate the imposition of
sentence to serve not only as a deterrent
but also to have a
retributive effect. Violence against women is rife and the community
expects the Courts to protect women
against the commission
of such crimes.”
[16]
It is important and the duty of the courts to impose appropriate
sentences, particularly so when violence is committed by men
in a
marital relationship, especially in a case like this where the
violence, culminates in the brutal murder of a vulnerable woman.
The
court is therefore enjoined to impose a strict sentence and send out
a clear message, because failing to do so, would result
in society
losing confidence in the court. The court is therefore enjoined to
consider and impose a strict sentence to send out
a clear and
unambiguous message. Failing to do so would result in society losing
confidence in the court.
[17]
The accused, during evidence in mitigation of sentence expressed his
regret and remorse for his conduct. Counsel for the accused
implored
the court to consider the mitigating circumstances in imposing an
appropriate sentence.
[18] I am not truly convinced that the
accused has shown true and sincere remorse for the crime that he has
committed against the
deceased as well as her family. .
In
S v Matyityi
,
2011 (1) SACR
40
(SCA), at para 13
Ponnan JA
had the following to say on
this aspect:
“
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 gnawing 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 for 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.”
[19]
If regard is to be had to what was stated by the learned judge of
appeal in the abovementioned dictum, it becomes imperative
upon a
court to look at the surrounding conduct and live reality of an
accused person. This approach is also not only confined
to the
statements made by the accused to the court. This is especially
prudent where the accused verbally admits to his criminal
conduct on
the day when he murdered the deceased, I deal with these aspects
hereunder.
[20]
When he was confronted by Mr Alberts
immediately after the incident and asked whether he had killed the
deceased, he remained silent.
He further tried to mislead them by
telling them that he dropped her off at work and that he did not do
anything to her. He was
unsympathetic towards their anguish,
trepidation and suspicion that he may have had done something to her.
It is clear, that he
was the last person in her company and would
therefore be the primary suspect. There was a significant suspicion
on the part of
the police as well as the family that he had done
something to her.
[21]
This was also because of his
conduct,
behaviour and attitude he displayed towards the deceased. It
was immediately suspected by Mr and Mrs Alberts, her
colleague
Feldman, as well as the police, that he had something to do with her
disappearance. Mr Alberts immediately accused him
of having killed
his daughter., Feldman immediately went to the police with the audio
clips that she had in safekeeping and
raised a suspicion based
on the audio recordings given to her by the deceased two months
earlier, that the accused may have done
something to her. This is a
very disturbing aspect of this case.
In
my view, he had no other choice but to confess to the murder of the
deceased.
[22]
The plea of guilty on the murder charge was watered down, and the
accused used this anger and rage as an excuse for not remembering
that he stabbed the deceased 24 times. She was also either bludgeoned
with an object against her head, or her head was smashed
against an
object. He further, did not play open cards with the court when he
omitted to fully explain the manner and method he
used to kill the
deceased, when the evidence clearly showed how he systematically
almost in stages, went about to kill the deceased.
[23]
I must state that he admitted that he also strangled the deceased
with an electric cord. He was, however, not forthcoming,
open and
honest as to why he went to such great lengths to murder the
deceased. When it clearly emerged that his actions was premeditated
and he formed a direct intention to murder the deceased.
[24]
Despite the overwhelming evidence that he regularly, physically
abused the deceased, to the extent that she had to lay charges
against him, get protection orders and moved out of the house she
shared with him, he denied that he regularly abused her. He tried
to
create the impression that it was not so. He furthermore,
shamelessly, failed to appreciate that the deceased was a human being
that had the right to associate with whom she wanted to, had the
right to leave him, and had the right not be considered as a
possession of his. This was the conduct, he displayed in his defence,
and also when he testified under oath, in mitigation of sentence.
[25]
In the matter of
S
v Khwela 2001(1) SACR 546 (N)
referred to by the prosecutor,
the
accused was convicted of murdering his ex-lover’s new lover by
shooting him four times at close range. The accused was
a 44 year old
first offender. Although the court found that it was pre-planned,
there is no discussion in the judgment concerning
the prescribed
minimum sentence of life for a pre-planned murder. This distinguishes
Khwela
from
the present case. Nevertheless the court remarked as follows at
P548H-549C
“
Whilst
the facts of a particular case may be such as to result in a
diminution of his blameworthiness, I am of the view that the
Court
should be careful to guard against the perpetuation of the oft-held
misperception that in every case where there is a killing,
consequent
upon a break-up of a love relationship, of an ex-lover or the
ex-lover's new lover, the very existence of such a relationship
alone
is sufficient for the perpetrator to be regarded in so sympathetic a
light as to justify the imposition of a sentence upon
him markedly
more lenient than that which would be imposed had the love
relationship not existed and had there been some other
motive for the
killing than one connected with such love relationship. The facts of
each case should be considered carefully, in
order to determine
whether such mitigating circumstances are indeed present, and if so,
the extent to which such mitigating circumstances
should influence
the severity of the sentence to be imposed.
It is
to my mind quite inappropriate, as has been the unfortunate tendency
in certain instances in the past, to regard certain killings
as
'domestic murders', and automatically less morally reprehensible
.”
[26]
The court in
Kwhela
remarked further at P549F-H as follows:
“
There is,
in my opinion, no room for the suggestion that the accused was at the
time of the killing in any heightened emotional
state of mind,
bearing in mind the time that had elapsed since the break-up. The
unfortunate fact of the matter is that all too
frequently in the
present day South Africa the use of firearms to maim and kill is
resorted to where people are frustrated in the
attainment of their
own selfish wants and desires. In the present case, the object of
such desire was the ex-lover, who would not
reconcile.
The
population at large is justifiably sick and tired of the burgeoning
crime rate and the country's unenviable reputation as the
murder
capital of the world. It is for this reason that the Courts have a
duty to society to impose sentences for these crimes
which reflect
the repugnance felt towards them by the general population and which
accordingly both satisfy the need for retribution
and operate as a
deterrent to others of like-minded criminal intent.
”
[27]
I am in respectful agreement with the sentiments expressed by the
court in the
Khwela
judgment. All too often male persons
who would make themselves guilty of spousal, or partner abuse would
more often take place
in the form of physical violence directed
towards women. And where such physical violence and assault
would, result in the
murder of the female partner and would be viewed
as less serious. In my view the opposite is true, because it is
expected of the
abuser who is in a position of trust, to respect, and
protect his female counterpart, rather to inflict harm upon her. It
is also
sometimes described as a crime of passion because of
jealousy, rage and hatred brought about by heightened emotions during
a lover’s
quarrel between people who are involved in an
intimate relationship or a marriage. It would then be considered as
either a mitigating
circumstance, which would lessen the moral
blameworthiness of the offender. In my view, this is a patriarchal
viewpoint, which
found its way into our judicial system, because of
the subservient manner in which women are treated. This clearly
undermines a
woman’s right to dignity and equality before the
law.
[28]
In this regard the Constitutional Court in
S v Baloyi 2000(1) SA
425 CC
at para 11 said:
“
All crime
has harsh effects on society., what distinguishes domestic violence
is its hidden, repetitive character and its immeasurable
ripple
effects on our society and in particular on family life, it cuts
across class, race culture and geography and is all the
more
pernicious because it is so often concealed and so often frequently
goes unpunished
”.
[29] The Constitutional court
continued at para 12:
‘
To
the extent that it is systemic, pervasive and overwhelming
gender-specific,
domestic violence both reflects and
re-enforces patriarchal domination, and does so in a particularly
brutal form.”’
[30] Before dealing with the interests
of society, it would be appropriate first consider whether, there are
substantial and compelling
circumstances to deviate from the
prescribed sentence. In this regard, the guidance of the Supreme
Court of Appeal in the oft quoted
S v Malgas 2001(1) SACR 469
(SCA)
where it was held that:
“
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.
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.
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.
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.
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.
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 bench mark which
the legislature
has provided.”
[31]
Mr Du Toit in argument, submitted that there are substantial and
compelling circumstances present in this case to deviate from
the
prescribed sentence. These are:
1)
that the
accused after the commission of the offence, went to hand himself
over to the police, he confessed to the crime and went
to point out
where the body of the deceased was laying;
2)
he showed
remorse and admitted guilt to the charges;
3)
that he was
worried about the fact that the body of the deceased was laying
outside in the elements;
4)
he further
submitted that the crime was committed under circumstances where the
accused was jealous and involved in
a very stormy
relationship with the deceased; and
5)
that the court
should take into consideration his personal circumstances; I have
already dealt with the aspect of remorse and the
accused perceived
confession of the crime and do not consider it of any real
significance.
[32]
In my view, the mere fact that the abuse took place in the context of
an intimate relationship which usually and statistically
speaking,
result in the death of a woman, should be regarded as an aggravating
factor. This, cannot ever be regarded as a circumstance
to deviate
from the prescribed sentence. In the matter before this court
where the life of the deceased was brought
about in a
premeditated fashion, the court would have to ask itself whether, the
circumstances such as rage and jealousy in an
intimate relationship
as this case is concerned, weighed up against the unspeakable
brutality and callous nature of the murder
that the accused had
committed, can be considered weighty enough to deviate from the
prescribed sentence.
[33] Even in cases where the death of
a spouse, and the children were not planned and premeditated, and the
prescribed sentences
were not applicable, the High Court in the
exercise of its inherent jurisdiction imposed a sentence of life
imprisonment. I am
not of the view that the circumstances referred by
Mr Du Toit, cumulatively, are weighty enough to conclude that there
are substantial
and compelling circumstances to deviate from the
prescribed sentence. In fact, most of it can either be regarded as a
neutral factor,
or an aggravating factor, especially in the goal
directed and calculated manner in which the accused conducted himself
when he
murdered the deceased. It was particularly cruel, callous and
the type of act only an evil minded person would perpetrate.
The
interests of Society
[34]
There is no doubt in my mind that the pre-meditated conduct of the
accused justifies a sentence of long term imprisonment.
The
community as well as the family of the deceased, expects nothing
less.
[35]
This is clearly a case where the personal circumstances of the
accused must give way to the deterrent and retributive effects
of
punishment. This is clearly a case as Mthiyane JA said in
S
v Senatsi 2006(2) SACR 291
….
“
This is one
of those cases where any law abiding and self-respecting citizen
would be repelled by the conduct of the appellants’’.
I agree with the
prosecutor that violence against women in South Africa, and
especially by persons like the accused, who sought
to exercise
control and power over the deceased, and threatened her verbally and
physically over time, that his conduct on the
day in question showed
a total disregard for her rights.
[36]
The interests of society, in cases like this was highlighted in the
matter of
DPP v Mngona
2010 (1)
SACR 427
(SCA)
where the appellant was
convicted of murdering his lover. It was unplanned and not a
scheduled offence. The court increased the
sentence of 5 years
imprisonment to 10 years and remarked at paragraphs [14] – [15]
as follows:
“
A failure
by our courts to impose appropriate sentences, in particular for
violent crimes by men against women, will lead to society
losing its
confidence in the criminal justice system. This is so because
domestic violence has become pervasive and endemic. Courts
should
take due cognisance of the salutary warning expressed by Marais JA in
S
v Roberts
2000
(2) SACR 522
(SCA)
para 20 where he stated:
'It [the
sentence] fails utterly to reflect the gravity of the crime and to
take account of the prevalence of domestic violence
in South Africa.
It ignores the need for the courts to be seen to be ready to impose
direct imprisonment for crimes of this kind,
lest others be misled
into believing that they run no real risk of imprisonment if they
inflict physical violence upon those with
whom they may have intimate
personal relationships.'
The
sentence imposed on the accused in the present appeal fails to
reflect an appreciation of this warning.”
[37]
In
S v Shaw
2011 (1) SACR 368
(ECG)
,
the accused, a first offender, was convicted of murdering his two
children,
in order to punish his wife. Pickering J,
despite not being obliged to do so, imposed a sentence of life
imprisonment.
[38]
Nugent JA in
S v Swart 2004(2) SACR 370
(SCA
) said that serious crimes will
normally require that retribution and deterrence come to the fore and
that rehabilitation will play
a relatively smaller role. Given the
circumstances, and the manner in which this horrific offence was
committed by the accused,
this is one of those cases where
retribution and deterrence comes to the fore and the rehabilitation
of the accused takes a backseat.
It must give expression to the
relative gravity of the offence, the prevalence of domestic violence,
which culminates in the murder
of women and act as a deterrent for
would-be offenders in domestic partnerships that such conduct will
not be countenanced.
[39]
It calls for a harsh approach to which the court gives effect in the
following form:
[40]
In respect of
Count 1
the accused is sentenced to
Eight
(8) months imprisonment
and in respect of
Count 4,
the
accused is sentenced to
Life Imprisonment
.
The
court orders that the sentence imposed on
count
1
, be served concurrently with the
sentence imposed on
count 2
.
In terms of the provisions of
section
102
of the
Firearms Control Act, 60 of 2000
, the accused is declared
unfit to possess a firearm.
_________________________
RCA HENNEY
Judge
of the High Court of South Africa