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[2014] ZASCA 158
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Kekana v S (629/13) [2014] ZASCA 158 (1 October 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 629/13
In
the matter between:
DAVID
KEKANA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation
:
Kekana
v The State
(629/2013)
[2014] ZASCA 158
(1 October 2014)
Coram:
Lewis
JA and Mathopo and Gorven AJJA
Heard:
11
September 2014
Delivered:
1
October 2014
Summary:
Murder
─ premeditation. Accused pleading guilty ─ admitting to
locking wife in the bedroom, and setting bed on fire
─ wife
died few days later in hospital ─ whether acted on the spur of
the moment or premeditated.
Sentence
─ life imprisonment ─ no substantial and compelling
circumstances found to exist.
ORDER
On
appeal from:
South
Gauteng High Court, Johannesburg (
Boruchowitz
J,
Nicholls
J and Tshabalala J sitting as a court of appeal):
The
appeal against sentence is dismissed.
JUDGMENT
Mathopo
AJA (Lewis JA and Gorven AJA concurring)
[1]
Mr Kekana, the appellant, was charged with arson and murder in the
South Gauteng High Court, Johannesburg. He was duly convicted
on his
plea of guilty to both charges. Having found that there were no
substantial and compelling circumstances justifying a departure
from
the minimum sentence prescribed under section 51(1) of the Criminal
Law Amendment Act 105 of 1997 (the Act) in respect of
the murder
count, the trial court sentenced him to life imprisonment and five
years’ imprisonment for the arson count. The
sentences were
ordered to run concurrently.
[2]
The appellant appealed to the full bench of the South Gauteng High
Court, Johannesburg (Boruchowitz J, Nicholls J and Tshabalala
J)
which dismissed the appeal. This appeal is with the special leave of
this court against the sentence of life imprisonment.
[3]
The appeal is based on two grounds. First, that the appellant was
incorrectly sentenced as if he had been convicted of murder
that was
planned or premeditated. Second, that the trial court erred in
finding that no substantial and compelling circumstances
existed to
justify a departure from a sentence of life imprisonment.
[4]
The trial court dealt with the case on the basis that the murder was
planned or premeditated and applied the provisions of s
51(1) read
with Part 1 of Schedule 2 of the Act. At the commencement of the
trial the appellant, who was legally represented, was
warned by the
court that he faced the prospect of life imprisonment in the absence
of substantial and compelling circumstances.
The record reveals that
before he pleaded the trial judge pertinently drew his attention to
the provisions in question.
[5]
The only argument advanced on behalf of the appellant is that the
trial court and high court erred in their findings that the
murder of
the deceased was premeditated. The case advanced for the appellant is
that he killed the deceased in the heat of the
moment and that he had
not conceived any plan to burn the house with the deceased inside. To
fully appreciate the appellant’s
contention it is necessary to
canvas the circumstances leading to the murder as described in the
statement setting out his plea
of guilty.
[6]
The statement contained a detailed explanation of how and why the
offences were committed. The appellant had a tempestuous relationship
with the deceased. He accused her of conducting extramarital affairs,
the parties quarrelled incessantly and threatened to kill
each other
and the deceased told him several times to pack his belongings and
leave the common home. On 13 April 2006, he set alight
the house
having locked the deceased inside the bedroom.
[7]
The appellant stated that, after an argument, the deceased had
initially locked herself in the bedroom. As a result he slept
on the
carpet in the dining room. After midnight he tried to get into the
bedroom but it was still locked. The deceased told him
that their
relationship was over and that he must leave the house. He then
decided to leave but because there was no petrol in
his car (as he
had used all of his petrol to test the deceased’s motor
vehicle, which he was repairing) he went to the filling
station in
her car to buy petrol to put in his car so that he could collect his
clothes and leave.
[8]
On his return, he found some of his clothes in the dining room packed
in a bag. This incensed him and he confronted the deceased
who was in
the bedroom lying on the bed. At that stage he decided to kill her by
setting fire to the house and lock her in the
bedroom. To achieve his
purpose he walked outside, fetched the petrol which he had just
bought, went to the deceased’s bedroom
and poured it onto the
bed on which she was lying. When she asked him what he was doing, he
told her that was the night she would
die. He then set the petrol
alight and ran out of the bedroom and locked the door. He continued
to spill the petrol in the passage,
kitchen and dining room and set
that alight. When he saw the flames he drove to Booysens Police
Station and reported his conduct.
The State accepted the facts in his
statement and the trial court duly convicted the appellant.
[9]
In
S
v
Jansen
[1]
it was held that where an accused pleads guilty and hands in a
written statement in terms of section 112(2) of the Criminal
Procedure
Act 51 of 1977 (CPA) detailing the facts on which his plea
is premised and the prosecution accepts the plea, the plea
constitutes
the essential factual matrix and cannot be extended or
varied in any manner which adversely impacts on the measure of
punishment
as regards the offence. The plea defines the lis between
the prosecution and the defence. See also
S
v
Ngubane
.
[2]
The State contended that the facts set out in the s 112(2) statement
showed that the murder was premeditated.
[10]
In argument before us, counsel for the appellant submitted that the
trial court and the full bench wrongly relied on certain
parts of the
s 112(2) statement and incorrectly inferred that the appellant’s
conduct amounted to premeditation. The submission
was that the
appellant acted on the spur of the moment and was incandescent with
rage when he killed the deceased by setting fire
to the house. It was
only when he saw his clothes packed in a bag in the dining room that
he decided to kill her. The act was thus
not premeditated, it was
argued.
[11]
However, the relationship with the deceased was a turbulent one
characterised by accusations of infidelity on the part of the
appellant. It was not the first time that the deceased had packed his
clothes into a bag and left them at the door. The appellant
dealt
with such incidents before without any fatal consequences. It is
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.
[12]
Another argument advanced on behalf of the appellant was based on
S
v Raath
,
[3]
where it was held that to prove premeditation, the State must lead
evidence to establish the period of time between the accused
forming
the intent to murder and the carrying out of his intention. In the
present matter there is no evidence as to how much time
passed
between the appellant’s admitted decision to kill the deceased
and when he doused the bed with petrol and set it alight
.
But a consideration of the appellant’s evidence suggests that
it was a matter of a few minutes, at the least.
[13]
In my view it is not necessary that the appellant should have thought
or planned his action a long period of time in advance
before
carrying out his plan. Time is not the only consideration because
even a few minutes are enough to carry out a premeditated
action.
[14]
The appellant pertinently admitted that after he saw his clothes, he
formed an intention and in his own words he decided to
end it all and
kill the deceased. He then gave effect to this decision. He went
outside to fetch petrol. He re-entered the house
and poured it on the
bed of the deceased while at the same time telling her of his
intention. He set it alight with the petrol.
He locked the deceased
in the room. He spilled the petrol in the passage, kitchen and dining
room. The locking of the door and
further pouring of petrol show that
he was carefully implementing a plan to prevent her escape and to
ensure that she died in the
blaze. To my mind, this is proof of
premeditation on his part. It follows that the appellant was
correctly convicted of premeditated
murder.
[15]
I now turn to consider the second leg of the appellant’s ground
of appeal. The appellant’s attack against the imposition
of
life imprisonment is that the trial court erred in finding that no
substantial and compelling circumstances existed which allowed
for a
departure from the prescribed sentence. In argument before us counsel
for the appellant referred to the following considerations
which he
submitted qualified as such substantial and compelling circumstances.
Firstly, that the appellant pleaded guilty and showed
remorse for his
actions and verbalised such remorse to Dr Labuschagne, who
interviewed him for the pre-sentencing report. Secondly,
that he was
a first offender and therefore that there were prospects that he
could be rehabilitated. Also that he was in a turbulent
relationship
with the deceased where lack of trust played a major role as he
suspected his wife of infidelity. That he felt abused
and belittled
by the deceased. That when he found his clothes packed in a bag in
the dining room he felt provoked and snapped.
Counsel for the
appellant argued that life imprisonment was inappropriate and that it
would effectively deny the appellant the
opportunity for
rehabilitation.
[16]
On the other hand, counsel for the State submitted that the facts
placed before the court by the appellant did not qualify
as
substantial and compelling circumstances which justified a lesser
sentence than life imprisonment. He argued that the mere fact
that
the appellant pleaded guilty did not necessarily support the
conclusion that he was remorseful as the plea of guilty could
have
been motivated by various factors, for example the appellant
realising that his son had seen him pouring petrol in the passage
and
setting it alight and/or that the evidence against him was
overwhelming and that it would have been futile to plead not guilty.
Concerning the prospects of rehabilitation, counsel for the State
contended that the appellant placed no facts before the court
to
demonstrate any probability of rehabilitation. In support of his
submission, he referred us to the report of Dr Labuschagne
in which
the latter confirmed that s
h
e
had not been informed of the appellant’s violent behaviour
towards the deceased.
[17]
In responding to the argument that life imprisonment was
inappropriate, counsel for the respondent submitted that on the
undisputed
facts, the appellant killed the deceased in a callous and
brutal manner by pouring petrol on the deceased, a defenceless woman
who was in bed at the time. The fact that he locked her inside the
bedroom shows brutality. In addition, it was submitted, the appellant
poured petrol in the passage leading to the dining room and the
kitchen to ensure that the deceased could not escape the inferno.
[18]
Counsel further contended that what is even more aggravating about
the conduct of the appellant, is that when the son cried
for help,
the appellant ignored his pleas until a neighbour came to assist the
son and they managed to break the window and free
the deceased. It
was submitted that after the incident the deceased spent a week in
hospital and must have been in excruciating
pain before she died.
According to counsel, all these factors negate any basis for finding
the existence of substantial and compelling
circumstances.
[19]
This case has more aggravating than mitigating factors. It can hardly
be disputed that the deceased died a cruel and painful
death at the
hands of her husband. She was killed in the one place that she
ought to have been safe, the sanctity of her
own home. The appellant
clearly exploited her vulnerability and abused the trust she had in
him as a husband. What is worse is
that after burning the house the
appellant failed to rescue her and secure medical assistance for her.
This callous and heartless
attitude in not checking the condition of
the deceased is clear proof of his lack of remorse. I agree with the
trial judge that
this conduct does not manifest genuine remorse.
Genuine remorse was correctly described by Ponnan JA in
S
v Matyityi
[4]
where he said 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 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; whether he or she does
indeed have a true appreciation of the consequences
of those
actions.’
[20]
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
[5]
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.’
[21]
The uncontested evidence suggests that the appellant killed the
deceased on a mere suspicion that she was unfaithful towards
him.
He torched the house in the presence of their son. Prior to that, he
had told his friend and neighbour that he was going
to kill the
deceased. This makes his conduct all the more morally reprehensible.
[22]
The correct legal approach to an appeal on sentence imposed in terms
of the Act is set out as follows in
S
v Malgas
[6]
:
‘
A
court exercising appellant jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion an appellate Court is of court entitled to consider
the question of sentence afresh. In doing so, it
assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it is
said, an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet be justified
in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence of the trial
court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly
be described as ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.
It must be emphasised
that in the latter situation the appellate
court is not at large in the sense in which it is at large in the
former. In the latter
situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord with
the sentence imposed
by the trial court or because it prefers it to
that sentence. It may do so only where the difference is so
substantial that it
attracts epithets of the kind I have mentioned.
No such limitation exits in the former situation.’
[23]
I have already indicated that the aggravating features in this matter
far outweigh the mitigating factors. I am unable to find
that the
court below erred in finding that there were no substantial and
compelling circumstances to justify any sentence other
than the one
statutorily prescribed by the legislature namely life imprisonment.
It follows that this court is not at large to
interfere with the
sentence and the appeal must fail.
[24]
In the result the appeal against sentence is dismissed.
R
S Mathopo
Acting
Judge of Appeal
Appearances:
For
Appellant: E Guarneri
with him W Karam
Instructed
by:
Johannesburg
Justice Centre, Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: M L Gcaba
Instructed
by:
Director
of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
[1]
S v Jansen
1999
(2) SACR 368
(C).
[2]
S v Ngubane
1985
(3) 677 (A) at 683 E-F.
[3]
S v Raath
2009
(2) SACR 46 (CPD).
[4]
S v Matyity
2011
(1) SACR 40
(SCA) para 13.
[5]
S v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 345A-B.
[6]
S v Malgas
2001
(1) SACR 469
(SCA) para 12.