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[2008] ZASCA 122
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S v Nesane (079/2008) [2008] ZASCA 122; [2009] 1 All SA 464 (SCA) (26 September 2008)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 079/2008
In the matter between
MMBENGWA
ALFRED NESANE Appellant
and
THE
STATE
Respondent
Neutral Citation:
Nesane v The State (079/2008)
[2008] ZASCA
122
(26 September 2008)
CORAM:
Mthiyane, Maya JJA et Boruchowitz AJA
HEARD:
1 September 2008
DELIVERED:
26 September 2008
Summary:
Criminal law – appellant convicted
of wife’s murder – intention to kill not proved –
conviction
substituted with that of culpable homicide –
sentence of eight years’ imprisonment antedated to the date of
sentence
imposed.
ORDER
On appeal from:
High
Court, Thohoyandou (Lukoto J sitting as court of first
instance
).
The appeal is upheld.
The conviction and sentence are set
aside a
nd the order of
the court below is substituted for the following:
‘
The accused is found
guilty of culpable homicide. He is sentenced to undergo eight years’
imprisonment antedated to 26 January
2001. I addition he is declared
unfit to possess a firearm.’
_____________________________________________________________________
JUDGMENT
___________________________________________________________
MAYA
JA
(
MTHIYANE
JA
and
BORUCHOWITZ
AJA
concurring)
[1]
The appellant was
convicted of the murder of his estranged wife, Cecilia Elelwani
Nesane (the deceased) by the Venda High Court
(Lukoto J). He was
sentenced
to
45
years’
imprisonment and declared unfit to possess a firearm
.
He
appeals
against
both
conviction
and
sentence
with
the
leave
of
this
court.
[2] That the appellant fired the shot which killed the deceased was
not in issue. What was in contention was whether or not the
shooting
was intentional.
[3] The deceased was last seen alive by her mother, Mrs Gladys
Ntsandeni, with whom she stayed at her maiden home around 09h00
on 17
June 2000. She was taking her four-year old mute boy, born of her
marriage to the appellant, to a speech therapist. She never
returned
home and calls to her cellular phone went unanswered. At about 16h45
on the following day the local police received a
report from the
appellant’s brother, Mr Mbulaheni Nethononda, that the
appellant was found at dawn in his motor vehicle near
his parents’
home. He was unconscious, seemingly from gassing himself with the
aid of a pipe connected to the vehicle’s
exhaust pipe, and was
rushed to hospital. The police were handed a letter reportedly
written by him which (translated from Venda)
read as follows:
‘
To whom it may concern
Now that I am not married, my wife is gone she is at her
home. It was after she destroyed my family, she brought confusion and
agony
to my children, I tolerated everything in welcoming her with
love. I am a maternity person here. I wipe the stools of the child
everyday, I cook, I wash, I take the child to crèche, while
the mother wanders all over the country, while regarding life
it as
life at its best. I tolerated all this.
In the morning of this day 17/06/2000 while I asleep, I
was awoken by the window panes being broken and the doors being
ploughed
by a pick. When I rose up I found Kanakana of Ntsandeni
standing before me holding a knobkerrie I retreated she was hitting
me
with it. I ran into the room and she hit the door three times and
it got broken and I ran into another room and I picked a fire-arm
so
as to threaten her with it. I was surprised having slipped onto the
wall, the fire-arm mistakenly fired and I then saw her lying
on the
floor with blood.
Because I loved her, I then realised that I would not
stand for this, I realised that it is important that I should follow
her.
My children will remain with my mother at the place where they
are staying at Nzhelele-Mauluma. The small child whose name is
Shakalanga
should be taken to Makwarela at her granny one Gladys
Ntsandeni.
I am gone!
Nesane Mmbengwa
17/06/2000’
[4] Guided by this letter the police, led by Sergeant Robert Ramala,
followed the trail to the appellant’s home. There, they
found
the back and front door handles damaged and a pane in the front door
broken. A pick axe, a spade, a garden fork and a pair
of pliers
apparently used to force entry were found next to the door. Upon
forcing their way into the premises the police made
a gruesome
discovery in the living room. A dead body of a woman subsequently
identified as the deceased was lying face down in
a pool of congealed
blood coming from the mouth. There was a baseball bat between her
legs. The room was in utter disarray and
it appeared as if there had
been a fight.
[5] A letter was found on the coffee table which (translated from
Venda) read:
‘
You decided to go away from your own kraals while
you thought that you will get a better future. Of course you are in
the process,
you came to boast your boyfriends and the house which
you are to buy in Louis Trichardt. You destroyed my family, my
children are
confused.
There is no one who will benefit between you and me, we
have all of us come to the end.
This house should be sold, the money should support the
children and further to make the final touches for the house at
Nzhelele
which the children should stay in.
Nesane M.A
You came to destroy the whole house I do not know what
was the problem. Now you did well. I shot you with no intention, but
my heart
is burning. Lets go together to our grandparents’.
[6] According to the ballistics evidence the weapon used in the
shooting was a .38 revolver which belonged to the appellant as
a
bullet and one of the two casings found at the scene were positively
linked to it. It does not appear from the evidence that
the garden
tools suspected to have been used in damaging the points of entry,
the baseball bat or any item at the crime scene were
tested for
fingerprints. The chief post-mortem findings were not recorded by the
court below. According to Sergeant Ramala, they
had not been able to
determine the precise location of the deceased’s injury. The
learned judge did, however, mention in
his judgment that ‘the
cause of death was a gunshot wound’ and it appears from the
summary of substantial facts which
was part of the appeal record that
the ‘post mortem report indicated the cause of death as
asphyxia due to ruptured respiratory
tract, subdural haemorrhage,
fracture of the skull all due to gunshot’. Against this
background the post mortem report, which
we were told from the bar
had gone missing from the high court file, was not placed before us
on appeal. More about this below.
[7] The State had no eyewitness and the appellant did not give
evidence. The case against the appellant therefore turned on
circumstantial
evidence, based on the two letters mentioned above
tendered in evidence, with the appellant’s consent, as his
suicide notes.
In addition to the contents of the suicide notes, the
State relied upon the police and ballistics evidence already set out,
Mrs
Ntsandeni’s testimony, supported by extracts from the
deceased’s diaries, to the effect that her marriage to the
appellant
was abusive and unhappy and the appellant’s failure
to testify.
[8] The essence of the reasoning and conclusion of the court below is
reflected in the following extract from its judgment:
‘
In truth what I have before me here, is the
version of the state under oath and as rightly pointed out by [State
counsel] the prima
facie case may be conclusive where there is no
reply from the [accused].
Before me I have the evidence that [the deceased] was
shot at … your own house … and that is where she died.
She died
of a gunshot wound. The bullet came from your own gun. You
do not deny that you are the one who pulled the gun in order to scare
her because she was very aggressive firstly towards the house itself
by smashing its doors and windows and secondly towards your
person by
beating you up with the baseball bat.
Mr Klaaf on your behalf referred to several decided
cases … [but] I am of the view that the facts in them are not
apposite
here. In this particular case I am convinced that the state
succeeded I proving its case against you beyond reasonable doubt and
I am convinced that you are the one who shot and killed [the
deceased] on the day in question and that the said killing was
unlawful.
You are therefore found guilty … of murder.’
[9] It is contended that the learned judge misdirected himself in a
number of respects; (i) by not referring the appellant for
psychiatric evaluation before the trial proceedings commenced to
ascertain his fitness to stand trial;
1
(ii) by allowing an incompetent legal representative to defend him
(iii) by not ensuring that the appellant was informed at the
outset
that he faced the imposition of a minimum sentence if convicted as
charged which resulted in the breach of his right to
a fair trial;
(iv) by admitting the hearsay evidence of the deceased’s diary
entries without affording the appellant an opportunity
to give
evidence; (v) by convicting the appellant of murder on the basis of
evidence which at best established culpable homicide
and (vi) by
imposing an incompetent sentence of 45 years’ imprisonment.
[10] I turn to discuss the above points. As to (i),
sec 77
of
the
Criminal Procedure Act 51 of 1977
obliges a court ‘[i]f it
appears to [it] at any stage of criminal proceedings that the accused
person is by reason of mental
illness or mental defect not capable of
understanding the proceedings so as to make a proper defence, [to]
direct that the matter
be enquired into and be reported on in
accordance with the provisions of
section 79.
’
Section 79
sets
out the mechanisms for an accused’s psychiatric evaluation.
[11]
I find no merit in
this criticism.
In my view, the fact of the appellant’s
failed attempt to take his life without more – which is all
that was relied
on by his counsel – placed no obligation on the
court below to question his mental state.
There
is no indication at all on the record that the appellant did not
follow the proceedings. Any lingering doubt must surely be
dispelled
by his lengthy and lucid testimony given in mitigation of sentence
during which he was, i
n a rather bizarre twist facilitated in
no small degree by the court below, cross-examined at length on the
merits of the shooting.
[12] The criticism against the quality of the appellant’s
representation at trial stage in point (ii) may similarly be given
short shrift. It is not supported by the record which amply reflects
that his legal representative raised relevant objections and
legal
arguments where necessary and in fact withdrew the potentially
contentious admissions relating to the shooting.
[13] With regard to the penalty provision in point (iii), it is so
that the State failed to bring it to the appellant’s attention
in its indictment. Section 35(3)(a) of the Constitution of the
Republic of South Africa, Act 108 of 1996 grants an accused the
right
to be informed of a charge with sufficient detail to answer it. As to
what the accused’s ability to answer a charge
entails, Cameron
JA remarked as follows in
S v Legoa
2
:
‘
[U]nder the constitutional dispensation it can
certainly be no less desirable than under the common law that the
facts the State
intends to prove to increase sentencing jurisdiction
under the [Criminal Law Amendment Act of] 1997 … should be
clearly
set out in the charge sheet. The matter is, however, one of
substance and not form, and I would be reluctant to lay down a
general
rule that the charge must in every case recite either the
specific form of the scheduled offence with which the accused is
charged,
or the facts the State intends to prove to establish it. A
general requirement to this effect, if applied with undue formalism,
may create intolerable complexities in the administration of justice
and may be insufficiently heedful of the practical realities
under
which charge-sheets are frequently drawn up. The accused might in any
event acquire the requisite knowledge from particulars
furnished to
the charge or in a Superior Court, from the summary of substantial
facts the State is obliged to furnish. Whether
the accused’s
substantive fair trial right, including his ability to answer the
charge, has been impaired, will therefore
depend on a vigilant
examination of the relevant circumstances.’
[14] The appellant, who was legally represented, was furnished with a
comprehensive summary of substantial facts. This document,
in my
view, contained all the relevant facts that he would have required to
place him on guard regarding the nature of the defence
he had to put
up. It hardly seems to me, in the circumstances, that his ability to
answer the murder charge was in any way impaired
by the State’s
omission. The court below thus committed no vitiating misdirection in
this regard.
[15] As to point (iv) I do not believe it necessary to delve in any
detail into the admissibility or otherwise of the extracts
of the
deceased’s diaries. As the appellant’s counsel conceded,
the court below, in any event, clearly accorded them
no weight as
reflected by its finding that they were couched in such a way that
only their author could understand them and indicated
only that the
deceased was an unhappy woman.
[16] The next question raised in point (v) is whether the appellant
was properly convicted of murder on the available evidence.
As
appears from the synopsis of the evidence led at the trial, the State
did not proffer any version to counter the admissions
made in the
appellant’s suicide notes which, in my view, are not at all
improbable. Sergeant Ramala’s evidence that
there was an
attempt to force entry and signs of a fierce struggle inside the
house only serves to corroborate the appellant’s
version. There
is absolutely nothing to gainsay the reason alleged by the appellant
for getting hold of the firearm and the manner
in which the fatal
shot (or shots in view of the ballistics evidence that two spent
cartridges were recovered at the scene) was
discharged. The absence
of the post mortem report which would have told us the precise nature
and location of the injuries sustained
by the deceased; evidence of
the location of the spent cartridges found at the scene which could
have given a composite picture
of the position of the parties when
the shots were fired and evidence whether any fingerprints were found
on the baseball bat allegedly
used by the deceased and the tools
suspected to have been used in forcing entry all make it impossible
for this court to draw any
inferences, least of all inferences that
would counter the defence version.
[17] Whilst there are huge gaps in the evidence which only the
appellant could have explained, it nonetheless cannot be said in
the
circumstances of this case that the appellant exposed himself to any
risk of having adverse inferences drawn from his reticence,
having
had no obligation to give evidence in the first place. There is
simply no evidence which shows that he intended, directly
or not, to
kill the deceased. As was properly conceded by his counsel, all that
the evidence establishes is negligence on his part.
He took
possession of a lethal weapon and must clearly have foreseen that in
the mobile scene a shot might be discharged and strike
the deceased.
He should therefore have been convicted of culpable homicide.
[18] The conviction of murder and, accordingly, the sentence of 45
years imposed in respect thereof – which was grossly excessive
for a murder conviction considering that the minimum sentence
prescribed by law
3
is 15 years imprisonment – must therefore be set aside.
[19] It remains to determine an appropriate sentence in the changed
circumstances. There are numerous, weighty mitigating factors
present
in the matter. The deceased was the aggressor whose conduct, ie her
desertion and neglect of the children, boasting to
the appellant
about her affairs with other men and her plans for the future which
did not include him, appears to have deeply hurt,
humiliated and
provoked him. Her aggression, in my view, removes this case from the
realm of domestic violence which presents a
serious problem in this
country. Quite clearly from the facts, there is very little
likelihood that the appellant will repeat the
offence. He expressed
deep remorse for the deceased’s death and such remorse is
stated in terms in his suicide notes and
reflected in the very fact
that he attempted to kill himself after the shooting.
[20] The appellant was and still is a valuable member of society
despite his incarceration. He reached the mature age of 43 years
without breaking the law. He was a stable family man and hands-on
father rearing four young children from a previous marriage and
his
and the deceased’s young son. He presently supports the
children from income earned from teaching fellow inmates in prison.
He was a principal of a highly successful high school and community
leader sitting in a number of educational boards. He held BA,
UEd and
BEd degrees before the offence. He has continued his studies in
prison and obtained numerous educational qualifications
including a
Master’s degree in education. He is presently pursuing a PhD
degree in education. That he is an excellent candidate
for
rehabilitation is undoubted in the circumstances.
[21] However, regardless of these circumstances which count strongly
in the appellant’s favour, the fact remains that he
took a
human life. The deceased was a mother and actively partook in the
rearing of her child. She was a highly skilled and educated
lecturer
rendering a valuable contribution to her community as a key figure in
sports development. She was in the prime of her
life and was working
hard to improve her life and that of her child. From her mother’s
account it does not appear that she
set off to attack the appellant
when she left home that morning. What diverted her from her route and
brought the unfortunate events
about is unfortunately a mystery that
will likely never be solved. Any sentence that this court imposes
must reflect the sanctity
of her life. Taking into account the
interests of society and its concerns about fatalities resulting from
the use of firearms,
the interests of justice clearly dictate a
custodial sentence.
[22] The appellant was in detention for a period of seven months
awaiting sentence and that must be factored into his punishment.
A
sentence of eight years imprisonment antedated to the date on which
he was originally sentenced, seems to me eminently suitable
in all
the circumstances.
[23] In the result the appeal succeeds. The conviction and sentence
are set aside and for the order of the trial court is substituted
the
following:
The accused is found guilty of culpable homicide. He is sentenced to
eight years’ imprisonment antedated to 26 January 2001.
In
addition he is declared unfit to possess a firearm.
___________________
MML MAYA
JUDGE OF APPEAL
Appearances:
For Appellant: S O Ravele
Instructed by
S O Ravele Attorneys
Louis Trichard
Naudes Incorporated, Bloemfonein
For Respondent: A I S Poodhun
Director Director of Public Prosecution
Thohoyandou
Director of Public Prosecution,
Bloemfontein
1
In terms of
s 77
of the
Criminal Procedure Act 51
of 1977
.
2
2003 (1) SACR 13
(SCA) paras 20-21. See also
S
v Ndlovu
2003 (1) SACR 331
(SCA) para
11.
3
Section 51(2)
of t
he
Criminal Law Amendment Act
105 of 1997
.