S v Mnisi [2009] ZASCA 17; 2009 (2) SACR 227 (SCA) ; [2009] 3 All SA 159 (SCA) (19 March 2009)

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[2009] ZASCA 17
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S v Mnisi [2009] ZASCA 17; 2009 (2) SACR 227 (SCA) ; [2009] 3 All SA 159 (SCA) (19 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 391/08
DOCTOR MNISI (THEMBA)
Appellant
and
THE STATE Respondent
Neutral citation:
D
Mnisi v The State
(391/2008)
[2009] ZASCA 17
(19 March 2009)
Coram:
CLOETE
JA, MAYA JA and BORUCHOWITZ AJA
Heard:
19
NOVEMBER 2008
Delivered:
19
MARCH 2009
Summary:
Criminal
Law ─ Sentence ─ Diminished responsibility ─ deterrence.
ORDER
On appeal from:
High
Court, Pretoria (Brunette and Van Zyl AJJ sitting as a court of
appeal).
1. The appeal is upheld. The
order of the court a quo is substituted with the following order:
'The appeal against the sentence
is upheld. The sentence imposed by the magistrate is set aside and
replaced with a sentence of
five years' imprisonment.'
JUDGMENT
BORUCHOWITZ AJA (Cloete JA
concurring in separate judgment.):
[1] This is an appeal against
sentence only. The appellant was convicted, upon a plea of guilty, by
the Regional Court (Benoni)
of one count of murder. As the appellant
was a first offender and the offence was committed in circumstances
other than those referred
to in part 1 of schedule 2 of the Criminal
Law Amendment Act 105 of 1997 (the Act) the provisions of s 51(2)(a)
of the Act found
application. This section requires the imposition of
a minimum sentence of 15 years imprisonment in the absence of
‘substantial
and compelling circumstances’ justifying a lesser
sentence. The regional court found such circumstances to be present
and sentenced
the appellant to a term of eight years' imprisonment.
An appeal to the High Court Pretoria proved unsuccessful and the
further
appeal to this court is with its leave.
[2] The appellant was convicted
on the strength of a written statement made in terms of
s 112(2)
of
the
Criminal Procedure Act 51 of 1977
. The factual basis upon which
the plea of guilty was tendered can be summarised as follows: The
appellant, who was a prison warder,
admits that on 11 August 2001 at
Rambuda Street in the district of Benoni he unlawfully and
intentionally shot and killed the deceased
Joshua Hlatswayo with his
licenced service firearm. Prior to the incident the appellant’s
wife and the deceased were involved
in an adulterous relationship.
The appellant resented this and found her actions to be extremely
humiliating and degrading. He
eventually confronted her about the
relationship with the deceased and their respective families
discussed the matter. The appellant
was relieved when his wife
promised that she would no longer see the deceased and felt hopeful
that he would be able to reconcile
with her. Unfortunately matters
did not turn out as promised. On the day of the incident the
appellant found his wife and the deceased
embracing each other in a
car. The appellant immediately drew his service firearm and shot the
deceased where he was sitting in
the vehicle. The appellant states
that when he found his wife in the embrace of the deceased all the
hurt and pain he had suffered
through the adulterous affair flooded
his mind and provoked him to the extent that he momentarily lost
control of his ‘inhibitions’
and shot the deceased. The appellant
claims that he did not intend to kill the deceased but discharged the
firearm recklessly appreciating
that his actions could kill the
deceased.
[3] The argument of the appellant
is that the trial court had not given sufficient consideration to the
fact that the appellant
acted at the relevant time with diminished
criminal responsibility as a result of the provocation and emotional
stress which preceded
the shooting. The shooting had occurred when
the appellant’s powers of restraint and self control were
diminished. It was also
contended that the trial court
over-emphasized the objective gravity of the offence and the need to
impose a deterrent sentence.
Consequently, although the trial court
had correctly found the existence of substantial and compelling
circumstances justifying
the imposition of a lesser sentence than the
minimum prescribed, the sentence imposed is vitiated by misdirection
as to entitle
this court to interfere therewith.
[4] The appellant does not seek
to rely upon the defence of temporary non-pathological criminal
incapacity
1
but rather upon diminished responsibility which is not a defence but
is relevant to the question of sentence. The former relates
to a lack
of criminal capacity arising from a non-pathological cause which is
of a temporary nature whereas the latter pre-supposes
criminal
capacity but reduces culpability. The following cases are examples in
this court where the fact that the accused was found
to have acted
with diminished responsibility warranted the imposition of a less
severe punishment:
S v
Campher,
2
S v Laubscher
;
3
S v Smith
;
4
S v Shapiro
;
5
and
S v Ingram
.
6
[5] Whether an accused acted with
diminished responsibility must be determined in the light of all the
evidence, expert or otherwise.
There is no obligation upon an accused
to adduce expert evidence. His
ipse
dixit
may suffice
provided that a proper factual foundation is laid which gives rise to
the reasonable possibility that he so acted.
Such evidence must be
carefully scrutinised and considered in the light of all the
circumstances and the alleged criminal conduct
viewed objectively.
The fact that an accused acted in a fit of rage or temper is in
itself not mitigatory. Loss of temper is a
common occurrence and
society expects its members to keep their emotions sufficiently in
check to avoid harming others. What matters
for the purposes of
sentence are the circumstances that give rise to the lack of
restraint and self control.
[6] The State accepted the
averments and facts set out in the appellant’s written statement
which accompanied his plea of guilty.
These undisputed facts raise
the reasonable possibility that the appellant was not acting
completely rationally when he shot the
deceased and that his actions
were the product of emotional stress brought about by the conduct of
the deceased and the appellant’s
wife. In my view the appellant’s
statement lays a sufficient factual foundation to support a finding
that he acted with diminished
responsibility when he committed the
offence. Murder is undoubtedly a serious crime but the appellant’s
conduct is morally less
reprehensible by reason of the fact that the
offence was committed under circumstances of diminished criminal
responsibility. This
factor was not afforded sufficient recognition
and weight by the trial court in imposing sentence on the appellant.
Also in the
appellant’s favour, and not taken into account by the
trial court, was the fact that the appellant acted with
dolus
indirectus
when
shooting the deceased.
[7] The trial court also placed
undue emphasis on the element of deterrence as an object of
punishment. This is evident from the
following passage in the
judgment where the magistrate states the following:
‘
.
. . the Court cannot give the impression that the Court condones
people executing people being involved in adulterous affairs.
As such
deterrence plays a heavy role in the sentence of this Court should
impose. Society will have to find other means to deal
with this
problem in our society.’
[8] So far as individual
deterrence is concerned, the evidence does not suggest that the
appellant has a propensity for violence
or is a danger to society. He
is a first offender and given the unusual circumstances of the case
is unlikely again to commit such
an offence.
[9] The element of general
deterrence must be placed in its proper perspective. Domestic
violence is rife and those who seek solutions
to domestic and other
problems through violence must be severely punished. Sentences
imposed must send a deterrent message. On
the other hand sight cannot
be lost of the fact that the appellant committed murder whilst acting
with diminished responsibility.
In such circumstances the element of
deterrence is of lesser importance when imposing sentence. This is
consistent with the approach
followed by this court in the
Campher
,
Smith
,
Ingram
and
Shapiro
cases.
[10] In the light of these
misdirections this Court is free to impose the sentence it considers
appropriate, subject to the provisions
of the Act and the sentencing
guidelines laid down in
S
v Malgas
.
7
[11] Taking these factors into
account I am satisfied that although direct imprisonment is
warranted, a sentence of eight years
would be unjust. The
circumstances do not call for an exemplary sentence. In my view,
imprisonment for a period of five years would
be an appropriate
sentence.
[12] The appeal is upheld. The
order of the court a quo is substituted with the following order:
'The appeal against the sentence
is upheld. The sentence imposed by the magistrate is set aside and
replaced with a sentence of
five years' imprisonment.
_________________________
P BORUCHOWITZ
ACTING JUDGE OF APPEAL
MAYA JA
(dissenting):
[13]
I
have had the benefit of reading the judgment of my colleague
Boruchowitz AJA. Regrettably, I am unable to agree with both his

reasoning and conclusion regarding the sentence he proposes should be
imposed.
[14]
The
background facts and the factors relevant for determination in the
sentencing enquiry are set out in the main judgment and I
need not
repeat them. Suffice to mention that there is, regrettably, a paucity
of detail on record as to how the incident actually
occurred; no post
mortem report seems to have been filed and the matter was decided
solely on the appellant’s rather sketchy
statement tendered in
terms of
s 112
of the
Criminal Procedure Act 51 of 1977
seemingly
tailored
8
to explain his mental state.
[15]
The
statement reads as follows:
‘…
2.
I plead guilty to a count of murder, freely, voluntarily and without
undue influence having been brought to bear on me.
3. I admit
that on 11/08/
2001
and at Rambuda Str.Daveyton which is within this Honourable Court’s
jurisdiction area, I shot Joshua Hlatswayo (hereinafter
referred to
as the deceased) with my licensed 9mm Norenco arm as a result of
which the deceased died.
4.
I admit that I had no legal excuse for shooting the deceased and my
actions were unlawful.
5.
I found my wife in a car in
flagrante
delicto
with the deceased whereupon I immediately drew my arm and shot the
deceased.
6.
The shooting was not planned nor premeditated and I had no time to
reflect before I pulled my arm and shot the deceased.
7. The deceased and my wife were
involved in an adulterous relationship and after it became known and
after the families discussed
the matter, my wife had agreed to no
longer see the deceased. At the time I suffered the actions of my
wife extremely humiliating,
degrading and I resented her activities.
I was very relieved when she indicated that she would no longer see
the deceased and hopeful
that we could salvage our marriage.
8.
On the day of the shooting when I found my wife and the deceased in
the car, I was provoked to such an extent that I momentarily
lost
control of my inhibitions and shot at the deceased to injure him as
he had injured me.
9.
All the hurt and pain I suffered before through their adulterous
affair, flooded my mind when I found them inside the car.
10.
I did not want to kill deceased but recklessly fired with my arm at
him. I appreciated that the instrument I used, the arm,
was a
dangerous weapon that could kill a person. I admit, as same had been
explained to me by my legal representative, that legally
it is viewed
that I had the intent to murder the deceased.
11. I knew my
actions on the day were unlawful although I was severely provoked and
lost control of my inhibitions but nevertheless
did at the time
foresee that I could kill the deceased.’
[16]
All
that can be gleaned from this statement is that the appellant’s
wife was having an adulterous affair with the faceless deceased,

which she failed to terminate despite her undertaking to do so to the
appellant and their families until the appellant found them
together
in a motor vehicle – in the magistrate’s judgment it is said that
they were kissing, a detail which must have been
mentioned during
legal argument as it does not appear in the body of evidence – and,
during a momentary lapse of self-control,
shot and killed the
deceased with the intent to ‘injure’ him and the foresight that
he might die from his action.
[17]
The
main contentions raised against the magistrate’s decision are that
she did not accord due weight to the mitigating factors
in the
appellant’s favour particularly that he was a first offender and
his plea of guilt, which indicated his remorse, as these
factors are
not reflected in her judgment. It was also submitted that the
magistrate overemphasized the element of deterrence which
has no role
in a case of this nature where it is not likely that the accused will
repeat the offence.
[18]
Regarding
the first criticism, it is so that the judgment makes no reference to
the appellant’s clean record and plea of guilty.
But this hardly
seems to me to justify a conclusion that the magistrate did not
consider these factors in determining the sentence.
As Davis AJA said
some sixty years ago ‘[n]o judgment can ever be perfect and
all-embracing, and it does not necessarily follow
that, because
something has not been mentioned, therefore it has not been
considered.’
9
To my mind, it is inconceivable that an experienced judicial officer
such as a regional magistrate, who daily adjudicates criminal
cases,
would have overlooked such elementary aspects of the sentencing
enquiry. I have no doubt that these factors would have weighed
on the
magistrate’s mind when she determined the appellant’s sentence.
[19]
As
regards the second challenge, I do not agree that the magistrate
misdirected herself by overemphasising the element of deterrence.

This court has made it quite clear in recent cases not so dissimilar
to the present one that the element of deterrence in the sentencing

process is a material factor in the community’s perception of
justice and legal convictions.
[20]
In
S
v Makatu
10
the
appellant murdered his estranged wife with whom he raised four minor
children – one born of their marriage, two from his previous

relationship and one from the deceased’s previous relationship. The
root of the strife was the deceased’s deceitful conduct
as she,
apparently, surreptiously maintained contact with the father of her
child, engaged in extramarital affairs whilst refusing
sexual
intercourse with the appellant and misused money he gave her. During
the appellant’s visit to her place of work in a bid
to make peace,
following an unsuccessful attempt by their families to effect their
reconciliation, she rebuffed his efforts and
ordered him to vacate
the family home which he was renovating for them. According to the
appellant the deceased’s reaction triggered
all the past, hurtful
memories of her conduct and, as he put it, ‘at that spur of the
moment [he] felt hurt and started shooting
at her’ and then shot
himself in the head sustaining serious injuries which he miraculously
survived.
[21]
The
court accepted that the offence was not premeditated and that the
appellant, a first offender and soldier of good standing of
18 years
in the South African National Defence Force who pleaded guilty and
expressed remorse, merely wished to save his marriage
for the sake of
their children whom he maintained and was further in a state of great
anguish when he, on the spur of the moment,
shot the deceased.
Notwithstanding these weighty mitigating factors Lewis JA held:
‘
Domestic
violence is rife and should not only be deplored but also severely
punished. Family murders are all too common. Society,
the vulnerable
in particular, requires protection from those who use firearms to
resolve their problems. The sentence imposed must
send a deterrent
message to those who seek solutions to domestic and other problems in
violence … A sentence of 12 years’ imprisonment
would send a
strong deterrent message to the community, but would take account of
the very difficult personal circumstances of
the appellant.’
11
[22]
In
a more recent judgment in
Director
of Public Prosecutions, Transvaal v Venter
12
Mlambo JA, writing for the majority, evaluated various past cases of
this court,
13
including some of those referred to in paragraph [4] above, which
involved family murders committed in emotionally stressful
circumstances
in which the accused were found to have acted with
diminished criminal responsibility. The learned judge described the
sentences
imposed in these cases, which ranged between three and
eight years’ imprisonment, as ‘very lenient’ and cautioned that
it
must be borne in mind when the cases are invoked that they were
‘decided at a time when it was “business as usual” and the

sentencing discretion of the courts was as yet unfettered by the
minimum sentencing legislation’.
[23]
In
Mlambo JA’s view, an effective sentence of ten years’
imprisonment – eight years’ imprisonment for the attempted murder

of the appellant’s wife, ten years’ imprisonment for the murder
of his five year old daughter and 15 years’ imprisonment
of which
five years were conditionally suspended for the murder of his four
year old son, ordered to run concurrently – which
he promptly
replaced with an effective prison term of 18 years, was ‘shockingly
light’ and did not reflect the interests of
society which viewed
the conduct in a very serious light and the need for deterrent
sentences. The learned judge continued at para
31:
‘
In my view
this matter calls for a sentence cognisant of [the respondent’s]
personal circumstances, but which takes account of
the seriousness of
the offences and the need for appropriate severity and deterrence.
This
latter element is at the core of the community interest in how courts
should deal with violent crime
.
This is a
matter in which the respondent’s personal circumstances are
outweighed by society’s need for a retributive and
deterrent
sentence.’
(My emphasis.)
[24]
In
my view, the magistrate properly considered the appellant’s
favourable personal circumstances, namely that he was a 31 year-old

first offender, was still married to the subject of his woes, had
young children and a grandmother dependent on him for support
and was
remorseful. Included in that enquiry was the effect on the appellant
of his wife’s adulterous conduct, which the magistrate
severely
disparaged commending the appellant’s attempts to salvage his
marriage. The magistrate expressly acknowledged that the
experience
must have caused him frustration, humiliation, anger and pain.
[25]
It
is clear from the magistrate’s judgment that she, as did the court
below, fully accepted that the appellant’s capacity for
sound
judgment and rational thought were impaired by these emotions and
that he was in a state of distress when he committed the
murder.
This, after all, is one of the key factors that led to the
substantial reduction of the mandatory minimum sentence of 15
years’
imprisonment to eight years' imprisonment.
[26]
Having
said that, mitigating factors must nevertheless be weighed against
the aggravating circumstances of the relevant offence
and the
expectations of society. As properly acknowledged in the main
judgment, murder is unquestionably an offence of the gravest
nature.
In this matter, the deceased posed no physical threat to the
appellant and apparently had no interaction with him at all.
All too
often in this country, male partners lose self-control and react
violently to marital and relational strife, a common fact
of life,
mostly with fatal results facilitated by the use of a firearm.
[27]
I
cannot agree more with the comments of Naidu AJ in
S
v McDonald
14
where
he said:
‘
It
is indeed unfortunate that, in recent times, crimes of violence
committed by the use of firearms as a result of anger and
frustration
,
appear to be on the increase. Persons possessing firearms have a
specific responsibility to ensure that they exercise self control

even in extreme cases, and that the use of a firearm must be resorted
to only when there is no other alternative.’
In that case the court imposed,
inter alia, eight years’ imprisonment on the appellant for the
murder of his ex-wife committed
spontaneously in a highly charged
child custody tug-of-war.
[28]
It
is critical to send out a clear message to society at large that
resort to violence cannot be tolerated. The courts can convey
that
message effectively only in the sentences that they impose in cases
of this nature. The possibility of rehabilitation of the
appellant as
a first offender and the improbability of a repeat offence,
strenuously argued on his behalf, certainly do not mean
that a short
term of imprisonment or correctional supervision are the only
appropriate sentences even when other relevant factors
indicate a
substantial term of imprisonment.
15
Just as the interests of society are not properly served by too harsh
a sentence, neither are they served by one that is too lenient
such
as the one proposed by my learned colleague which, in my view, fails
to adequately reflect the gravity of the offence.
[29]
In
determining the precise weight to be attached to the appellant’s
defence of diminished criminal responsibility it seems to
me
instructive to consider the remarks of Nugent JA in his concurrence
in the
Venter
decision.
16
There, the learned judge reminds us that diminished criminal
responsibility is not a pathological condition but ‘a state of mind

varying in degree that might be brought about by a variety of
circumstances … [such as] the effects of alcohol, jealousy,
distress,
provocation … [which] have always been matters to be
taken account of in mitigation’ and concludes that nothing is
altered
when these circumstances are brought together under a label.
17
[30]
As
stated above, it is undisputed that the appellant acted with
diminished criminal responsibility when he committed the murder.
But,
on a fair assessment of all the evidence, I hardly find a prison term
of eight years for the offence – which, incidentally,
the
legislature has ordained to be ordinarily punishable by 15 years’
imprisonment in the absence of substantial and compelling

circumstances
18
– startling, shocking or disturbing. I would, accordingly, dismiss
the appeal.
_________________
MML MAYA
JUDGE OF APPEAL
CLOETE JA:
[31] I have had the advantage of
reading the judgments of my colleagues Boruchowitz and Maya. I
respectfully agree with the former
and find myself, with equal
respect, fundamentally in disagreement with the latter.
[32] The most significant fact in
the present appeal so far as sentence is concerned, is that when he
shot the deceased, the appellant
was acting with diminished
responsibility. That appears quite clearly from both paragraphs 8 and
9 of the appellant's plea explanation,
19
accepted by the State, where the appellant says that he was provoked
and 'lost control of [his] inhibitions'. My colleague Boruchowitz

gives in my view proper emphasis to this fact and refers to previous
decisions of this court in support of his view; whereas my
colleague
Maya underplays its significance and refers to authority in support
of her view which, for reasons I shall give, I consider
inapposite or
contrary to established authority in this court.
[33] It must be underlined that
diminished responsibility consists in loss of restraint and
self-control (which does not have to
amount to sane automatism to
amount to mitigation). That is what happened here. The appellant
killed the deceased but when he had
'lost control of [his]
inhibitions' ie when his ability to exercise normal self-restraint
was impaired. My colleague Maya quotes
(in para 29 above) from the
judgment of Nugent JA in
DPP
Transvaal v Venter
.
20
I understand my colleague Nugent in the passage quoted to be saying
that various factors can contribute to produce the state of
mind
labelled by lawyers as diminished responsibility, and that that state
of mind may vary in degree. In the present matter, the
degree to
which the appellant's responsibility for his actions was diminished,
and the reasons therefor, were established by the
appellant's plea
explanation. My colleague Maya comments that there is 'regrettably a
paucity of detail on record as to how the
incident actually
occurred', categorises the appellant's plea explanation as 'rather
sketchy' and concludes on this point that
the plea explanation was
'seemingly tailored to explain his mental state'. I, on the other
hand, would have expected the plea explanation
to be tailored to
emphasise the appellant's mental state and not to amount to a
regurgitation of conclusions of fact to be found
in some precedent
from the law reports. And if the State considered that the plea
explanation could be controverted by evidence
at its disposal or by
cross-examination of the appellant, it was free not to accept it. But
the prosecutor did accept it, with
the consequence that the facts it
contains must be taken as correct.
[34] The appellant was not acting
with diminished responsibility in either of the two decisions in this
court relied upon by my
colleague Maya. In the first, namely
S
v Makatu
,
21
it was found that the appellant 'at the spur of the moment . . . felt
hurt
and started shooting' (my emphasis) ─ and for that reason, the
decision is of no relevance in the present context.
The other judgment
of this court on which my colleague relies, that of Mlambo JA in
DPP
Transvaal v Venter
,
22
in my respectful view and for reasons which I gave in a dissenting
judgment at the time, both constitutes a radical departure from

sentences previously considered appropriate by the courts, including
this court, for murder committed with diminished responsibility,
and
also emphasises aspects of sentence which this court has ─
repeatedly ─ held do not require emphasis in such cases. One
of
those aspects is deterrence. My colleague Maya relies upon the
judgment of Mlambo JA to justify the emphasis of this aspect
in the
present case and in particular places in italics
23
his statement that 'This latter element [viz deterrence] is at the
core of the community interest in how courts should deal with
violent
crime'. I am unable to reconcile this
approach with established case
law in matters such as the present. I shall give four examples.
[35] In
S
v Campher
24
this court said:
'Die misdaad waaraan
appellante haar skuldig gemaak het is ongetwyfeld 'n ernstige een. In
ons huidige samelewing waar rusies tussen
getroude pare dikwels
uitloop op die dood van een (of soms albei) van hulle behoort die
element van afskrikking in straf normaalweg
sterk na vore te tree.
Die huidige is egter, na my mening, nie 'n geval waar daardie element
belangrik is nie. Appellante was 'n
eerste oortreder en daar is geen
suggestie hoegenaamd dat sy 'n neiging tot geweld het nie. Die
teenoorgestelde blyk eerder uit
die getuienis.'
In
S
v Smith
25
this court said:
'The appellant is a
first offender and on all the evidence has never, apart from on this
occasion, acted violently. One can safely
conclude that there is no
need for a sentence to be imposed to serve as a personal deterrent.
There is little or no likelihood
of this experience repeating
itself.'
In
S
v Ingram
,
26
which deals with the same point as my colleague Maya JA does in
regard to the interests of society (in para 28 of her judgment),
this
court said:
'It is trite law
that the determination of an appropriate sentence requires that
proper regard be had to the triad of the crime,
the criminal and the
interests of society. A sentence must also, in fitting cases, be
tempered with mercy. Murder, in any form,
remains a serious crime
which usually calls for severe punishment. Circumstances, however,
vary and the punishment must ultimately
fit the true nature and
seriousness of the crime. The interests of society are not best
served by too harsh a sentence; but equally
so they are not properly
served by one that is too lenient. One must always strive for a
proper balance. In doing so due regard
must be had to the objects of
punishment. In this respect the trial Judge held, in my view
correctly, that the deterrent aspect
of punishment does not play a
major role in the present instance. The appellant is not every likely
to repeat what he did. Deterrence
is therefore only relevant in the
context of the effect any sentence may have on prospective
offenders.'
Lastly, I would refer to
S
v Shapiro
27
where the court said:
'[T]here can be no
doubt that the community must view this crime with abhorrence. I do
not believe, however, that right-thinking
men would demand condign
punishment in a case where the accused acted with substantially
diminished criminal responsibility. Nor
do I think that there is
substance in the point made in para 2.1.4 that the trial Judge
ignored or underemphasised the increase
in cases of this nature, or
overemphasised emotional instability as a justification for or in
mitigation of unacceptable conduct.
Each case must be judged on its
own facts, and it would, I think, be wrong in principle to impose a
heavier sentence in this case
in an attempt to stem the flow of cases
in which emotional instability is relied on by the defence.
. . .
I do not agree that
the learned trial Judge ignored or minimised the importance of
retribution and deterrence as objects of punishment.
I do not think
that in the light of the finding of diminished responsibility this
case is one which is clamant for retribution.
It does not appear from
the evidence that Shapiro is likely to again commit a violent crime.
He has no previous convictions relevant
to show propensity for
violence. It does not seem that he is a danger to society which would
call for his separation from the community
for a long time. In regard
to the deterrence of others, it does not seem to me that in the
present case a long prison sentence
is called for. The concatenation
of circumstances was highly unusual and is unlikely to occur again.'
I would only add, as I did in
DPP
Transvaal v Venter
,
28
that to my mind there would seem to be little purpose in attempting
to deter a person not in full control of his or her faculties.
[36] For these reasons, I am
unable to support the approach of my colleague Maya and I am of the
view that the magistrate committed
a misdirection in finding that:
'[D]eterrence plays
a heavy role in the sentence that this court should impose.'
[37] There is a further
misdirection in the judgment of the magistrate to which my colleague
Boruchowitz refers,
29
namely, that the magistrate did not afford sufficient recognition and
weight to the fact that the appellant had acted with diminished

responsibility. The concept is nowhere mentioned by name by the
magistrate. The high water mark of her judgment in this regard
is
contained in the following passages:
'So the court has to
accept that this incident occurred as a result of you acting on the
spur of the moment and that it was then
to a great extent surely as
the result of you being put under stress.
. . .
However, the court
accepts from the factual circumstances that you must have been
frustrated and probably angered. That these feelings
of mixed
emotions must have been made worse by means of the inevitable pain
and heartache that you must have felt. And that all
this then led to
you acting on the spur of the moment.'
The High Court on appeal simply
paraphrased these findings. I am therefore, with respect, also unable
to support the following finding
by my colleague Maya:
30
'It is clear from
the magistrate's judgment that she, as did the court below, fully
accepted that the appellant's capacity for sound
judgment and
rational thought were impaired by these emotions . . . when he
committed the murder . . . .'
[38] Because of the misdirections
by the magistrate, I agree with my colleague Boruchowitz that this
court is at large to impose
the sentence it considers appropriate.
Giving due weight to the fact that the appellant acted with
diminished responsibility, and
bearing in mind the guidelines in
S
v Malgas
,
31
I respectfully agree with my colleague Boruchowitz for the reasons he
gives that imprisonment for a period of five years would
be an
appropriate sentence. I accordingly concur in the order made by him.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
For Appellant: M Wyngaard
Instructed by
A S Steijn; Benoni
Rosendorff Reitz Barry;
Bloemfontein
For Respondent: S Masilela
Instructed by
Director of Public
Prosecutions; Pretoria
Director of Public
Prosecutions; Bloemfontein
1
See
S
v Laubscher
1988 (1) SA 163
(A);
S v Calitz
1990 (1) SACR 119
(A);
S v Wiide
1990 (1) SACR 561
(A);
S
v Kalogoropoulos
1993 (1) SACR 12
(A);
S
v Potgieter
1994 (1) SACR 61
(A);
S
v Kensley
1995
(1) SACR 646
(A);
S
v Di Blasi
1996 (1) SACR 1
(A);
S
v Cunningham
1996
(1) SACR 631
(A);
S
v Henry
1999 (1) SACR 13
(SCA);
S
v Francis
1999
(1) SACR 650
(SCA);
S
v Kok
2001 (2) SACR 106
(SCA).
2
1987 (1) SA 940
(A) at 964 C-H and 976 D-E.
3
1988
(1) SA 163
(A) at 173 F-G.
4
1990
(1) SACR 130
(A) at 135 B-E.
5
1994
(1) SACR 112
(A) at 123C-F.
6
1995 (1) SACR 1
(A) at 8D-I.
7
2001
(2) SA 1222
(SCA).
8
I use these words fully mindful of the fact that it was the State’s
duty to prove its case against the appellant.
9
R v
Dhlumayo
1948
(2) AD 677
at 706.
10
2006 (2) SACR 582
(SCA).
11
S v Makatu
(supra)
at paras 17 and 18.
12
[2008] ZASCA 76
;
2009 (1) SACR 165
(SCA) at para 25.
13
S v Laubscher
1988
(1) SA 163
(A);
S v
Smith
1990 (1) SACR
130
(A);
S v
Kalogoropoulos
1993
(1) SACR 12
(A);
S v
Shapiro
1994 (1) SACR
112
(A) and
S v Di
Blasi
1996 (1) SACR 1
(A).
14
2000
(2) SACR 493
(N) at 510 e-f.
15
S v
Khumalo
[1984] ZASCA 30
;
1984
(3) SA 327
(A) at 333F.
16
[2008] ZASCA 76
;
2009 (1) SACR 165.
17
Para 65.
18
In
terms of
s 51(3)(a)
of the
Criminal Law Amendment Act 105 of 1997
.
19
Quoted by my colleague Maya in paragraph 15 of her judgment.
20
[2008] ZASCA 76
;
2009
(1) SACR 165
(SCA).
21
Referred
to in paras 20 and 21 above.
22
Above,
n 20.
23
In
para 23 above.
24
1987
(1) SA 940
(A) at 964C-H per Jacobs JA, Boshoff AJA concurring at
967D-E.
25
1990
(1) SACR 130
(A) at 136b per Kumleben JA, Hefer and Friedman JJA
concurring.
26
1995
(1) SACR 1
(A) at 8i-9b per Smalberger JA, Hefer and Nienaber JJA
concurring.
27
1994
(1) SACR 112
(A) at 123i-124d per Nicholas AJA, Van Heerden and
Smalberger JJA concurring.
28
Above
n 20, para 61.
29
Para 6
above.
30
In
para 25 above.
31
2001 (2) SA
1222
(SCA).