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[2017] ZANCHC 50
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Rossouw v S (CA&R15/2017) [2017] ZANCHC 50; 2018 (1) SACR 179 (NCK) (19 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case number:
CA
& R 15/2017
Datum aangehoor/Date
heard:
05
/ 06 /2017
Datum gelewer/Date
delivered:
19
/ 06 /2017
In
the matter between:
MARIA
GERTRUIDA ROSSOUW
Appellant
and
THE
STATE
Respondent
Coram:
Mamosebo,
J
et
Erasmus,
AJ
JUDGMENT
ON APPEAL
ERASMUS,
AJ
[1]
The appellant was convicted on a charge of murder in the Regional
Court, Calvinia, and sentenced to 15 years imprisonment in
terms of
the provisions of section 51(2) of Act 105 of 1997. She
appealed against her conviction and sentence, after leave
to appeal
had been granted on petition.
[2]
The appellant had pleaded not guilty during her trial. In her
plea explanation, she admitted to having stabbed the deceased
on 2
March 2014 and that he had died as a result of the stab wound she had
inflicted on him. It was stated that she had acted
in
self-defence.
[3]
It is trite that there is no
onus
on an
accused in a criminal case and that the State had to prove the guilt
of the appellant beyond reasonable doubt.
[1]
This includes that the State had to prove that the appellant had not
acted in self- defence and, if she had defended herself
against an
attack by the deceased, that she had exceeded the legitimate bounds
of self-defence.
[4]
The issue whether the appellant had acted in self-defence must be
considered in the context of the evidence of the eye-witness,
Mr
Jimmy Solomons. He was a single witness in respect of the
interaction that had taken place between the appellant and the
deceased on the night in question.
[5]
According to Mr Solomons he had gone to bed at 22:00 and shortly
thereafter heard a scuffle outside his room and the appellant
calling
his name. He proceeded to the kitchen where he found the
appellant and the deceased quarrelling. At that stage
the
appellant had a knife in her hand and was standing at the door of the
house. The deceased was inside the house, near
the stove.
The deceased moved towards the appellant and attempted to grab her.
The appellant performed a stabbing action
in the direction of the
deceased, but missed him. The deceased jumped back, but again
approached the appellant in an aggressive
manner. This time he
grabbed the appellant by her arms. The appellant again stabbed
at the deceased and inflicted the
fatal wound to his chest. The
deceased left the house and, shortly thereafter, passed away in the
street near the house of
the appellant.
[6]
The
contents of the post mortem report, which had been handed in by
agreement between the State and the accused, were not in dispute.
From the report it appeared that the appellant had stabbed the
deceased once on his chest and that the wound had penetrated into
the
left ventricle of the deceased’s heart.
[7]
There is objective evidence that the appellant had sustained bruises
on her arms. These had been inflicted by the deceased
and
corroborated the evidence of Mr Solomons.
[8]
It was common cause between the State and the appellant that the:
8.1
appellant and the deceased had been in a relationship and that this
relationship had been terminated;
8.2
deceased had previously assaulted the appellant;
8.3
deceased had been bigger, heftier and stronger than the appellant.
[9]
The Court
a quo
refused the appellant’s application for
her discharge at the end of the State’s case. The
appellant thereafter
closed her case without adducing any evidence.
[10]
It has long been settled law that a court of appeal should be slow to
interfere with the factual findings of the trial court.
[2]
In the absence of
factual error or misdirection on the part of the trial court, its
findings are presumed to be correct.
[3]
[11]
Criticism was levelled against the evidence of Mr Solomons as his
viva
voce
evidence
had contradicted the version contained in his police statement.
The Court
a
quo
considered
all the evidence and had carefully scrutinised the evidence of Mr
Solomons in accordance with the guidelines laid down
in
S
v Mafaladiso en Andere.
[4]
The learned Magistrate
had
also approached Mr. Solomon’s evidence with the necessary
caution, as was required of her as presiding officer.
We are
satisfied that the Court
a
quo
had not misdirected herself in accepting the evidence of Mr Solomons.
[12] In
S
v De Oliviera
[5]
Smalberger
JA stated the test for self-defence as follows:
“
The
test for private defence is objective ─ would a reasonable man
in the position of the accused have acted in the same way
(S v Ntuli
1975 (1) SA 429
(A) at 436E)...”
[13]
The learned Judge proceeded in setting out the legal position in
respect of putative self-defence as follows:
“
In
putative private defence it is not lawfulness that is in issue but
culpability (‘skuld’). If an accused
honestly believes
his
life or property to be in danger, but objectively viewed they are
not, the defensive steps he takes cannot constitute private
defence.
If in those circumstances he kills someone his conduct is unlawful.
His erroneous belief that his life or property was
in danger may well
(depending
upon the precise circumstances) exclude dolus in which case liability
for the person’s death based on intention
will also be
excluded; at worst for him he can then be convicted of culpable
homicide...”
[14] The test as to
whether the appellant had acted in self-defence, appears to have been
applied correctly by the Court
a
quo.
In
S
v
Makwanyane and Another
[6]
at
paragraphs [138] and [144] Chaskalson P stated:
“
Self-defence
is recognised by all legal systems. Where a choice has to be made
between the lives of two or more people, the life
of the innocent is
given preference over the life of the aggressor. This is consistent
with s 33(1). To deny the innocent person
the right to act in
self-defence would deny to that individual his or her right to life.
The same is true where lethal force is
used against a hostage taker
who threatens the life of the hostage. It is permissible to kill the
hostage taker to save the life
of the innocent hostage. But only if
the hostage is in real danger.
The
law solves problems such as these through the doctrine of
proportionality, balancing the rights of the aggressor against the
rights of the victim, and favouring the life or lives of innocents
over the life or lives of the guilty. But there are strict limits
to
the taking of life, even in the circumstances that have been
described, and the law insists upon these limits being adhered
to”
.
And:
“
The
rights to life and dignity are the most important of all human
rights, and the source of all other personal rights in Chapter
3. By
committing ourselves to a society founded on the recognition of human
rights we are required to value these two rights above
all others.“
[15] The Court
a
quo
found
that the evidence that had been presented during the State case
called for an answer from the appellant. The appellant
elected
not to testify in her own defence. The learned Magistrate
appropriately referred to and applied the principles that
had been
laid down in
S
v Boesak.
[7]
[16] We are satisfied
that a reasonable person, in the position of the appellant,
would
not have acted in the same way as the appellant and
would
not have stabbed the deceased under the circumstances that had
existed at the time. The appellant had not acted reasonably
and
legitimately in order to protect herself against the deceased.
[17] Even if it is
accepted that the appellant had believed that there had been an
imminent threat to her person, the degree of
violence she had used
was disproportionate to the attack on her person. She had thus
exceeded the bounds of self-defence
and her actions were unlawful.
This raises the issue whether the State had proven that the appellant
had the necessary intent
to commit murder. Mr Van Tonder, on
behalf of the appellant, correctly conceded that the appellant had
intentionally killed
the deceased and that the form of
dolus
in
this instance is
dolus eventualis.
[18] Given the
circumstances under which the wound had been inflicted, the weapon
used and the position and nature of the wound,
we are satisfied that
the appellant had foreseen the possibility of the death of the
deceased as a result of her actions, and secondly,
that she had
reconciled herself with this possibility by stabbing the deceased.
[19]
In this instance
it cannot be found that the Court
a
quo
had
misdirected herself on the facts or the law. It follows
that the appeal against the conviction stands to be dismissed.
[20]
The offence that the appellant had been convicted of falls under Part
II of Schedule 2 of Act 105 of 1997. The prescribed
minimum
sentence in this instance is 15 years imprisonment, unless
substantial and compelling circumstances were found to be present.
The trial court had found no such circumstances and had imposed the
prescribed sentence.
[21]
With regard to sentence, it should be kept in mind that ordinarily
the test on appeal is not whether this Court would have
imposed a
different sentence, but whether the Court
a
quo
had exercised its discretion judicially.
[8]
In
S
v PB
[9]
it was stated that the approach should be different where a sentence
had been imposed in terms of Act 105 of 1977, as these prescribed
sentences could not be departed from lightly or for flimsy reasons.
A proper enquiry is required on appeal as to whether
the facts that
had been considered by the sentencing court, constituted substantial
and compelling circumstances.
[22]
The personal circumstances of the appellant were common cause.
The appellant was 40 years old at the time of sentencing
and a first
offender. She had completed grade 9 at school. She had
three daughters aged 19, 16 and 4 years old. The
appellant had
been gainfully employed. She was a member of a church and had
actively participated in church activities.
The appellant had
been moderately under the influence of alcohol during the commission
of the crime. The deceased had assaulted
the appellant on
several occasions in the past and there had been a measure of
provocation before the commission of the crime.
[23]
Mr Van Tonder submitted that the circumstances, set out above,
cumulatively amount to substantial and compelling circumstances
and
that the imposition of the minimum sentence in this instance
constitutes an injustice.
[24]
It was stated in
S
v Malgas
[10]
,
that
all factors that traditionally taken into account during sentencing
continue to play a role and must be measured against the
yardstick of
substantial and compelling circumstances. If the particular
circumstances of a case are such that they render
the prescribed
sentence unjust in that it would be disproportionate to the crime,
the accused and the needs of society, a Court
is entitled to impose a
lesser sentence.
[25]
In this instance we are satisfied that, as a result of a
consideration of the circumstances present, the cumulative effect
of
these circumstances can be characterised as substantial and
compelling which would render the imposition of the minimum sentence
unjust. It follows that we can therefore interfere with the
sentence of the Court
a
quo
and
deem a sentence of 12 years imprisonment as appropriate
.
We make the following
order:
1.
THE
APPEAL AGAINST THE CONVICTION IS DISMISSED.
2.
THE
APPEAL AGAINST THE SENTENCE SUCCEEDS AND
THE
SENTENCE OF FIFTEEN (15) YEARS IMPRISONMENT IS SET ASIDE AND REPLACED
WITH THE FOLLOWING:
“
THE
ACCUSED IS SENTENCED TO UNDERGO TWELVE (12) YEARS IMPRISONMENT.”
3.
THE
SENTENCE IS ANTEDATED TO 24 APRIL 2015.
________________
SL ERASMUS
ACTING JUDGE
I
concur.
________________
MAMOSEBO MC
JUDGE
For
the Appellant:
Adv.
Van Tonder (oio Legal Aid SA)
For
the Respondent:
Adv.
Kgatwe (oio NDPP)
[1]
S v Jochems
1991(1) SACR 208 (A) at 211E-F;
S v V
2000(1)
SACR 453 (SCA) at 455A
[2]
R
v Dlumayo & Another
1948(2)
SA 677 (A) 705-6
[3]
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645e- f
[4]
2003
(1) SACR 583
(SCA)
at 593i-j
[5]
1993
(2) SACR 59
(A) 63i-64b; See also
Director
of Public Prosecutions, Gauteng v Pistorius
(96/2015)
[2015] ZASCA 204
(3 December 2015)
2016
(1)
SACR
431
(SCA) at para [52]
[6]
[1995]
ZACC 3
;
1995
(2) SACR 1
(CC)
[7]
2001(1)
SA 912 (CC) at para [24] and also reported as
2001(1)
SACR 1 (CC
)
; See also
S
v Francis
1991(1)SACR
198 (A) at 203h-j
[8]
S v Obisi
2005(3)
SACR 350 (W) at 353 para [7];
S
v Pillay
1977(4)
SA 531(A) at 535 E-G
[9]
2013(2) SACR 533 (SCA) at 539F-G
[10]
2001(1) SACR 469 (SCA) at 481B-C and 482C-F