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[2022] ZAECMKHC 86
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Veto v S (CA&R 80/2022) [2022] ZAECMKHC 86 (18 October 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MAKHANDA]
CASE NO.CA&R
80/2022
In the matter between:
SIYANDA
VETO
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL JUDGMENT
NORMAN J:
[1]
This is an appeal against sentence only. The appellant is before this
court having
been granted leave to appeal by the regional court,
against sentence, on 8 July 2021. Mr Geldenhuys appeared for the
appellant
and Mr Nohiya for the respondent.
Background facts
[2]
The appellant and Ms Ntombethemba Tokwe (Ms Tokwe) were in a romantic
relationship
for a period of about fifteen years. A minor child was
born out of that relationship.
[3]
On 16 June 2019, in the evening, the appellant approached Ms Tokwe,
who was walking
from a tavern in the company of the deceased, Mr
Khanyile Helebe and her brother Mr Khululekani Tokwe. Ms Tokwe was
also involved
romantically with the deceased. The appellant had a
verbal altercation with Ms Tokwe and insisted that she should go with
him.
It appears that when Ms Tokwe and the appellant were arguing,
the deceased moved away and stood a few meters away from them. Ms
Tokwe refused to go with the appellant. Mr
Khululekani
Tokwe intervened and walked away from the appellant with his sister
.
The appellant went to the deceased and stabbed him.
The
deceased died as a result of the injuries sustained on his chest.
[4]
The evidence of Dr Dwyer, a district
surgeon for Sarah Baartman area, found three wounds on the deceased’s
body, one of which
had been inflicted on his chest next to the collar
bone, penetrating through the rib just underneath the collar bone. He
described
it as follows
: ‘it went
through the rib so the rib that is just underneath the collar bone,
it went through that rib then it went to the
left lung.’
Dr
Dwyer found that that it was that wound that caused the deceased’s
death.
[5]
The appellant was charged with the murder of the deceased. At the
conclusion of his trial
he was convicted and sentenced to a term of
fifteen years imprisonment. He applied for leave to appeal against
both conviction
and sentence. The trial court refused leave to appeal
in respect of the conviction but granted it in respect of sentence,
as aforementioned.
Grounds of appeal
[6]
The appellant relied on several grounds of appeal which may be
summarized as follows:
6.1 That
when considering an appropriate sentence, the personal circumstances
of the accused, the nature and seriousness
of the crime, and the
interests of society must be considered. None of those aspects must
be unduly over emphasized at the expense
of others. The sentence
imposed is disproportionate to the personal circumstances of the
appellant, the seriousness of the offence
and the interests of
society and is therefore unjust.
6.2 The
trial court ought to have taken into account the fact that the
appellant must have experienced emotional
turmoil upon seeing his
girlfriend, who at the time had not broken up with him, together with
the deceased in a romantic relationship.
Instead of the court taking
that aspect as a mitigating factor, it used it as an aggravating
factor.
6.3 On
these bases it was submitted that, having regard to all the grounds,
the trial court misdirected itself
and thus, this court, is at large
to interfere with the sentence.
6.4 Mr
Geldenhuys submitted that there were substantial and compelling
circumstances present which justified a
deviation from the prescribed
minimum sentence. He submitted that the appellant stabbed the
deceased shortly after the altercation
with Ms Tokwe. These two
events were closely connected. The appellant must have experienced
emotional turmoil as a result of Ms
Tokwe’s infidelity and the
deceased became the object of his anger. He submitted that even
though the appellant did not testify
in mitigation, there was some
turmoil caused by jealousy. He accordingly submitted that the
sentence should be set aside and substituted
with a less severe
sentence.
[7]
The appellant relied on several decisions where the various courts
had reduced sentences
imposed on similar matters. Those matters are,
in my view, distinguishable from the facts of this case. I shall deal
with those
decisions briefly.
[8]
The facts in
S
v Malijane
[1]
the accused in that case was sentenced to undergo eight years
imprisonment which was reduced to five years imprisonment , on
appeal,
in terms of section 276(1)(i) of the Criminal Procedure Act.
In that case the appellant had stabbed his wife to death after he
found his wife in a compromising position with another man. She
refused to return home with him. He stabbed her five times with
a
knife.
[9]
The other decision is
S
v Mnisi
[2]
where a correctional services officer , was found by the court to
have acted with diminished responsibility when he found his wife
in
an embrace with the deceased in a car . He shot the deceased. His
wife and the deceased had previously been involved in an adulterous
relationship and his wife promised that she will no longer see the
deceased. The sentence of five (5) years was deemed to be appropriate
by the majority of the court.
[10]
The Supreme Court of Appeal in
DPP
v Mngoma
[3]
, where the accused killed a pregnant woman with whom he lived. He
suspected that she was unfaithful to him and entertained some
doubts
as to whether the child that she was carrying was his. He threw a
stone at her head causing her to fall to the ground. He
then
strangled her with a lace from his soccer boot until she stopped
breathing. He then tied her to a tree and left the scene.
The Court
found that a sentence of ten years imprisonment was an appropriate
sentence after emphasizing the fact that the accused
was convicted of
murder with
dolus
eventualis
,
he was a first offender and was uneducated and unsophisticated.
[11]
In
S
v Mathe
[4]
the accused was a Correctional Services officer who killed the mother
of his child and attempted to kill a colleague shortly after
the
former had informed him that she was leaving him for the latter. A
sentence of ten years imprisonment was imposed.
[12]
In
S
v N
[5]
the
accused was sentenced to correctional supervision in terms of section
276(1)(i) for shooting and killing a married man with
whom she had a
love relationship.
[13]
The State opposed the appeal and advanced the following
grounds:
13.1 The sentence
of fifteen years imprisonment is not shockingly inappropriate if one
has regard to the following facts:
(i)
That when the appellant found the deceased, Ms Tokwe and other people
walking together,
he wanted to force Ms Tokwe to go with him. The
deceased did not provoke the appellant in any way and there was no
reason for the
appellant to attack him.
(ii)
The killing of the deceased was a senseless act. The conduct of the
appellant on that day displayed
a sense of entitlement and belief on
his part that he owned Ms Tokwe.
(iii)
The facts of this case are distinguishable from the case law relied
upon by the appellant in his heads
of the argument, because in those
cases the accused had pleaded guilty and had placed facts before
those courts. As a result of
those facts it was found that those
accused persons had diminished responsibility. However, in this case,
he argued, there are
no facts that the appellant had placed before
the trial court and there were no findings of diminished
responsibility.
(iv) After the
intervention of Mr Tokwe, the appellant had all the time to control
and restrain himself. It was submitted that his
powers of restraint
and self-control were not diminished because he managed to leave Ms
Tokwe and he went to the deceased who was
a few meters away.
(v)
The trial court properly considered the appellant’s personal
circumstances, the nature of
the crime and the interests of the
community. The mitigating factors must be weighed against the
aggravating circumstances of the
offence in question and the
expectations of the society. As properly acknowledged in sentence by
the trial court, murder is unquestionably
a serious offence. In this
matter the deceased posed no physical threat to the appellant and had
no interaction with him at all.
(vi)
The trial court correctly found that there are no substantial and
compelling circumstances present
and correctly imposed the sentence
of fifteen years imprisonment. On those bases this court should
dismiss the appeal against the
sentence.
The test
[14]
In
S
v Malgas
[6]
Marais
JA articulated the test in the following terms:
“
A
court exercising appellate 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 course 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”
.
Discussion
[15]
The appellant was sentenced based on the Criminal Law Amendment Act
,105 of
1997
. The trial court found that
there were no substantial and compelling circumstances to deviate
from the minimum sentence of fifteen
years.
[16]
I wish to refer to the remarks of the trial court when it granted the
appellant leave to appeal
against the sentence. The court stated the
following:
‘
As
far as the application for leave to appeal against the sentence is
concerned I note the argument that the sentence is shockingly
inappropriate or shockingly severe. The sentence can never be
shocking severe if the prescribed minimum sentence of 15 years is
imposed because that is the sentence that is prescribed by the
legislature for a first offender. As far as the question regarding
the
substantial
and compelling circumstances
is concerned, I will agree that another court might come to a
different finding as far as that is concerned.
Taking the person(sic)
circumstances into account cumulatively, another court might find
that 15 years imprisonment is then unreasonable
in the circumstances
of this particular matter. I will thus grant the accused leave to
appeal against the sentence on him.’
[17]
The trial court having received evidence in respect of both the
conviction and sentence clearly
stated in this matter that there were
no substantial and compelling circumstances when it sentenced the
appellant. However, in
the application for leave to appeal, she found
that this court may find those substantial and compelling
circumstances and find
the sentence to be unreasonable. It would not
be prudent to simply reject those findings which are made by a trial
court that had
the full facts ventilated before it, had observed the
witnesses, had questioned some of them for clarity and thus had the
benefit
of
viva voce
evidence before it. However, that
finding, is not binding on this court, but it is a matter for
consideration as regards, the appropriateness
of the sentence, and in
particular the presence of substantial and compelling circumstances.
[18]
The non- existence of substantial and compelling circumstances is an
issue that the trial court
applied its mind to. This is evident in
its judgment for sentence. It,
inter alia,
treated the
appellant as a first offender since his previous conviction was not
related to the murder charge. It found that that
fact does not in
itself constitute substantial and compelling circumstances. It also
found that the appellant was not a primary
caregiver of the minor
child who receives social grant. He was unemployed. In 2008 he was
convicted on a charge of housebreaking
with intent to commit a crime
and was sentenced to 12 months’ imprisonment which was wholly
suspended. It considered his
personal circumstances and the fact that
liquor had a role to play during the commission of the offence. It
also considered the
seriousness of the offence, the interests of the
Port Alfred community and the community at large, the prevalence of
violent crimes
in that area and in the country, the appropriateness
of a lengthy term of imprisonment.
[19]
These factors that the trial court considered when it sentenced the
appellant had not changed when it entertained
the application for
leave to appeal. Considering the finding that the trial court made in
the ruling for leave to appeal, I must
record the following factors
as factors that, despite the finding, they militate against
interference with the sentence. They are:
19.1
Unlike all the cases relied upon by the appellant, above, the
appellant maintained throughout in his evidence that he did not
see
the deceased that night.
19.2 He heard for the
first time after his arrest that Ms Tokwe was dating another person.
19.3 On his version, the
argument between him and Ms Tokwe was that she refused to go with him
and she complained that he was no
longer maintaining the child. When
she refused, she raised her voice and her brother intervened. He then
left and walked away.
[20]
What is common in all the above mentioned cases relied upon by the
appellant, is that, in each
one of those cases, the accused or
appellant had placed factors that led to commission of the offences.
The trial court and the
appeal court, having been armed with those
facts were able to deviate from the minimum sentence or interfere
with sentence on appeal
and alter it. The trial courts were in a
position to make a finding of diminished responsibility based on
those facts. The dearth
of relevant facts herein from the appellant
fortifies the findings of the trial court and there is accordingly no
basis to interfere
with the sentence.
[21]
Having regard to the facts that he placed before Court in his
evidence and those placed in mitigation
by his legal representative,
any suggestion of emotional turmoil or jealousy, does not come from
the appellant. The only person
who would know whether he was
emotionally affected by the infidelity, in any way, would be the
appellant himself. He said nothing
about that. A court on appeal
cannot speculate on how the appellant felt unless he has put out
facts in that regard. I do not find
that the trial court in its
exercise of its discretion, misdirected itself. I also find the trial
court was correct in its finding
that there were no factors that
qualify as substantial and compelling circumstances.
[22]
I agree with Mr Nohiya that this was a senseless killing. The
appellant attacked a man who was
simply standing and stabbed him to
death. No provocation and no argument but simply a brutal attack with
a sharp object.
[23]
It appears from the decisions relied upon by the appellant that the
courts including the Supreme
Court of Appeal have found that where
offences committed which relate to matters of passion, the courts
impose lenient sentences.
Of course this is not the general principle
but one can find that the reason for that is because matters of
passion are informed
largely by emotions. Be that as it may, society
expects every men or woman to be able to control his or her emotions
when confronted
with matters of infidelity. The circumstances under
which this particular offence was committed, was taken into account
by the
trial court.
[24]
On the evidence it is apparent that the stabbing of the deceased
happened soon after the altercation
between the appellant and Ms
Tokwe. The brutality of the offence and the manner in which it was
carried out and the interests of
society far outweigh the appellant’s
personal circumstances. There is accordingly no merit in all the
grounds upon which
the appeal is based. In the circumstances the
appeal must fail.
[25]
I accordingly make the following Order:
“
The
appeal against sentence is dismissed
.”
T.V. NORMAN
JUDGE OF THE HIGH
COURT
I agree.
V. P. NONCEMBU
JUDGE OF THE HIGH
COURT
Appearances:
For the
APPELLANT
:
ADV.
D.P
.
GELDENHUYS
JUSTICE CENTRE
MAKHANDA
For the
RESPONDENT :
ADV. A.A. NOHIYA
OFFICE OF THE DIRECTOR
OF PUBLIC PROSECUTIONS
MAKHANDA
DATE OF
HEARING
:
12 OCTOBER 2022
DATE OF
JUDGMENT :
18 OCTOBER 2022
[1]
1991
(1) SACR 279 (O).
[2]
2009
(2) SACR 227 (SCA).
[3]
2010
(1) SACR 427
(SCA).
[4]
2014
(2) SACR 298
KZN.
[5]
2016
(2) SACR 436
KZN.
[6]
2001
(1) SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All SA 220
at 478
d-g.