About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2017
>>
[2017] ZANCHC 56
|
|
Smous v S (CA&R29/14) [2017] ZANCHC 56; 2018 (1) SACR 108 (NCK) (15 September 2017)
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
YES
Circulate
to Regional Magistrates:
YES
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No
:
CA&R 29/14
In
the matter between
:
EMMANUEL
SMOUS
Appellant
V
THE
STATE
Respondent
Heard:
07 August 2017
Delivered:
15 September 2017
Coram: Tlaletsi AJP; Williams Jet
Ndlokovane AJ
FULL
BENCH APPEAL JUDGMENT
Tlaletsi
AJP
INTRODUCTION
[1]
The appellant, Mr Smous, stood trial in this Court (Pakati J) on a
charge of murder read with the provisions of s 51 of Act
105 of 1997
as amended. He was convicted of murder with
dolus directus
as
the form of intent and sentenced to serve life imprisonment on 15
June 2016. The trial court on 6 July 2016 refused leave
to
appeal against both his conviction and sentence. However, on
petition, the Supreme Court of Appeal on 17 October 2016 granted
him
leave to appeal to the Full Court of this Court against his sentence
only.
FACTUAL
BACKGROUND
[2]
On 01 January 2014 the appellant met the deceased, his former
girlfriend, at a certain tavern in the area
of
Boichoko, Postmasburg at about 01h00. The deceased was in the company
of her friend Ms Tshireletso Gaborone (Ms Gaborone). At
the time the
deceased was leaving the tavern for her current boyfriend's place.
After a short while the appellant left with the
deceased and she
ended up being with the appellant at his shack. A certain Mr
Mahole who lived in the appellant's neighbourhood
overheard the
deceased screaming for help from the appellant's closed shack.
Mr Mahole knew the deceased well and could easily
identify her voice
because the deceased used to live in the same shack with the
appellant.
[3]
Later that morning the appellant's parents were called to the shack
where they found the deceased lying on the floor in a pool
of blood.
The parents left the shack in the condition they found it and went to
the police station to report. They returned accompanied
by police
officers.
[4]
The police found a blood stained knife on the kitchen unit, a
shoelace and a red electric cord hanging from the rafters. The
appellant unsuccessfully tried to commit suicide by hanging himself
with the two items. The attempt left him with scars and marks
around
his neck. The concoction of liquid soap and Ratax (Rat poison) that
he prepared and drank also failed to kill him. The deceased
was
certified dead by the paramedics called to the scene.
[5]
The post-mortem report revealed the following injuries on the body of
the deceased.
a.
History of an assault.
b.
Swollen left half of the face.
c.
Laceration inside of the upper lip.
d.
Linear abrasion left arm.
e.
20x2mm incision wound right half of the neck, 150mm from the midline
and 146cm from the right heel, its tract
ends in the muscles of the
neck.
f.
5x2mm incision right half of the neck, 150mm from the midline
and 140cm from the right heel, its
tract ends in the muscles of the
neck.
g.
Large hematoma under the skin over the left half of the face, ear and
left temporal part of the scalp.
h.
Subarachnoid haemorrhage over left cerebral hemisphere.
1.
Fractured ribs 8 and 9 right chest.
J.
Bruised right and left kidneys and renal vessels.
k.
Severe bruising of the muscles of the back.
[6]
The Forensic Pathologist concluded that the cause of death was
multiple injuries. Some of the injuries were caused by severe
blunt
force trauma and others were likely caused by a sharp object.
[7]
The respondent proved the following previous convictions of the
appellant. On 9 June 2005 he was convicted of possession of
a firearm
and for discharging a firearm at a public place in contravention of
Regulation 2 of section 39 of the Arms and Ammunition
Act 75 of
1969. He was sentenced in terms of
section 279(1)(a)(2)
of the
Criminal Procedure Act 51 of 1977
and the sentence was postponed for
five years. He was also declared unfit to possess a firearm. On 17
September 2009 he was convicted
of Assault with intent to cause
grievous bodily harm and was sentenced to 12 months imprisonment
which was wholly suspended for
four years on certain conditions.
[8]
The appellant was 27 years old at the time of his sentence. He
attended school up to Grade 10. He has three children aged 9
and 6
years respectively and the youngest was 10 months old. All the
children were staying with their respective mothers. The appellant
was employed at a mine earning R7 400-00 per month plus a housing
allowance of R1 200-00. He was not married. He was however in
a
relationship with the mother of his 10 month old child. The
girlfriend testified in mitigation of sentence and pleaded that he
be
given a wholly suspended sentence so that he can maintain her child.
He was contributing R700-00 and R500-00 per month
for the
maintenance of his elder children respectively.
[9]
The deceased was 20 years old at the time of her death. She was the
mother of the appellant's second child and received R500-00
per month
for maintenance, as per a court order. The child has been negatively
affected by the death of her mother. The deceased's
family was also
affected by her death and were attending counselling sessions.
[10]
Regarding the offence itself, the Forensic Pathologist testified
that the injuries were consistent with those inflicted
by a
person with a high level of anger.
[11]
In imposing sentence the trial court concluded thus:
"[19]
Having considered the
circumstances
of this case
I
am
satisfied that the accused's personal circumstances and
mitigating factors are by far outweighed by the aggravating factors.
I
am
also satisfied that there are no substantial and
compelling circumstances justifying a departure from the imposition
of the prescribed
sentence
.
I consider the fact that
the deceased was a defenceless woman, who posed no danger to the
accused who
was
viciously assaulted and
stabbed
with a knife by the accused
.
The fact that
the accused did not call for help but remained in the shack trying to
commit suicide and later locked his shack
and left for his parental
home
with
his brother
suggests
that he
did not want the deceased to get
assistance.
His
previous convictions
also show that this is
a
type of man
who would
not think twice to
violate
a woman.
This
was clear
from the
evidence
of
Ms Mabilo
,
the
deceased
'
s
friend
,
that the
deceased
used to show
her marks
on her
body
that were
the
results of
the
physical abuse by the
accused.
In
my view the following sentence is an appropriate sentence:
The
accused, Emmanuel Smous, is sentenced to life imprisonment.
"
PARTIES'
SUBMISSIONS
[12]
Counsel for the appellant contended that a sentence of life
imprisonment in the circumstances of this case is inappropriate
and
induces a sense of shock. He submitted that a sentence of 15 years
imprisonment would have been an appropriate sentence for
the
appellant especially that the trial court did not find that the
murder was premeditated.
[13]
Counsel for the respondent submitted that the question to be
determined is whether it was competent to impose the sentence
of life
imprisonment in the absence of premeditation or preplanning, despite
the prescribed minimum of 15 years imprisonment
being
applicable as per the provisions of the Act. Counsel contended that
the trial court was not precluded from imposing
a
heavier
sentence than the prescribed minimum sentence. She referred us to
S v Radebe
2011JDR 0926 (FB) as authority for her
submission.
ANALYSIS
[14]
The applicable penal
provision in the type and circumstances of the murder charge for
which the appellant was convicted is Part
II of Schedule 2 to the
Act.
The schedule refers to murder in circumstances other than
those referred to in Part 1 of Schedule 2. The prescribed minimum
sentence
is 15 years imprisonment for a first offender. This fact
appears to have been common course between the appellant and the
respondent
in the court
a quo.
[15]
It is notable that the indictment did not provide the specific part
of Schedule 2 that the murder charge should be read with.
The
indictment only referred in general terms to murder read with the
provisions of Act 105 of 1997. Put differently, the indictment
did
not specify whether the murder charge falls within the ambit of Part
1 of Schedule 2 prescribing life imprisonment on conviction
or Part
II of Schedule 2 prescribing the minimum sentence of not less than 15
years imprisonment for first offenders, should there
be a
finding that there are no substantial and compelling circumstances
justifying a departure from the prescribed sentence.
[16]
It is clear from the reasons for sentence that the trial court,
having found that there were no substantial and compelling
circumstances in the case of the appellant elected to impose the
prescribed minimum sentence. The court a quo, therefore, imposed
life
imprisonment on the mistaken belief that it is the sentence that was
prescribed by the Act. The sentence of life imprisonment
was not
imposed on the basis that the prescribed minimum 15 years
imprisonment was inappropriate in the circumstances of
the case and
that life imprisonment would be an appropriate sentence. Had this
been the case the trial court would have gone
further to pronounce
why life
imprisonment
is an appropriate
sentence.
In this regard, the
trial
court
misdirected itself.
[1]
[17]
The decision of the Full Bench of the Free State High Court in S v
Radebe (supra) is distinguishable from the circumstances
of this
case. Although that court embarked on an exercise to determine
whether the murder charge for which the appellant was convicted
of
was planned in the circumstances where the trial did not make that
determination, it nevertheless concluded that the murder
was not
planned or premeditated. In my view such an exercise was not
necessary because the appellate court did not have the jurisdiction
to review the findings of the trial court. That Court, and this
Court, is confined to the conviction of the appellant as determined
by the trial court when considering the appeal on sentence.
[18]
Having found that the trial court misdirected itself this Court is
enjoined to consider afresh whether there are substantial
and
compelling circumstances present to justify a sentence lesser that
the 15 years imprisonment prescribed in Part II of Schedule
2 of the
Act. That is the inquiry inter alia, that should have been embarked
upon by the trial court.
[19]
Regarding the appellant's personal circumstances the following
remarks in
S
v Vilakazi
[2]
are to be kept in mind:
"[58]
The personal circumstances of the appellant, so far as they are
disclosed in the evidence, have been set out earlier.
In cases of
serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of
a
substantial
period of imprisonment the questions whether the accused is married
or single, whether he has two children or three,
whether or not he is
in employment, are in themselves largely immaterial to what that
period should be, and those seem to me to
be the kind of 'flimsy'
grounds that Ma/gas said should be avoided. But they are nonetheless
relevant in another respect. A material
consideration is whether the
accused can be expected to offend again. While that can never be
confidently predicted his or her
circumstances might assist in making
at least some assessment. In this
case
the appellant had
reached the age of 30 without any serious brushes with the law. His
stable employment and apparently stable family
circumstances are not
indicative of an inherently lawless character."
[20]
I now turn to the offence itself. The deceased was a defenceless
woman who posed no danger to the appellant. She was derailed
from her
way to her boyfriend by the appellant who took her to his shack where
she met her ultimately death. There is however no
evidence to suggest
that she was not willing or was forced by the appellant to accompany
him. The attack with a knife was vicious.
Her loud screams did not
deter the appellant from further attacking her. It would not be
unreasonable to infer from the facts that
the appellant may have out
of jealousy decided that if he could not have her as his girlfriend
no one should. This inference is
bolstered by the fact that the
appellant made a serious attempt to take his own life as well and
escape accounting for his deeds.
The suicide attempt could only have
taken place after the deceased was dead already.
[21]
The appellant's parents must be commended for their swift action of
ensuring that they brought the police to the scene for
justice to be
attained. They did not consider covering up for their son's evil
deeds. The parents and appellant's brother also
testified as state
witnesses on the events of that morning. I have no doubt that
the offence itself has adversely affected
the appellant's family and
that it will always be in their mind that their child has killed a
person who is a mother of their grandchild.
[22]
There is not much information on record about the deceased other than
that she used to be the appellant's girlfriend and mother
of his
second child. The state did not present any report on the
impact this offence had on the deceased's family for purpose
of
sentence. Be that as it may, her death must have had a negative
impact on her child, family, friends and the community at large.
Her
children have lost their mother.
[23]
Violence in our society, particularly by men against women is
prevalent. The interests of society dictate that a strong
message to the public that violence will not be tolerated should be
sent. Failure to do so would feed into the unjustifiable trend
of the
society taking the law into their own hands by punishing, without due
process, alleged suspects of crime. Respect for the
law must be
guaranteed. A sentence should be fair to the society, the offence,
the offender and be blended with a measure of mercy.
[24]
I am satisfied that the aggravating features of this case outweigh
the mitigating circumstances. There are no substantial and
compelling
circumstances justifying a lesser sentence than the prescribed
sentence. However, the prescribed minimum sentence of
15 years
imprisonment would, in my view, not adequately cater for the gravity
of the offence and its prevalence, the interests
of society and shall
not be fair to the appellant for what he has done. That is a judicial
balance that a sentencing court should
strive to achieve. A sentence
in excess of the prescribed minimum of 15 years in the circumstances
of this case justified.
[25]
In the result the following order is made.
1)
The appeal against sentence is upheld.
2)
The Order of the trial court with regard to the life term of
imprisonment is set aside and substituted with
the following:
"a)
The accused is sentenced to a term of imprisonment for 18 years.
b)
The sentence is antedated to 06 July 2016.
''
______________________
L.
P TLALETSI
ACTING
JUDGE PRESIDENT
Northern
Cape High Court, Kimberley
I
concur.
_______________________
C.C
WILLIAMS
JUDGE
Northern
Cape High Court, Kimberley
I
concur.
_______________________
N.
NDLOKOVANE
ACTING
JUDGE
Northern
Cape High Court, Kimberley
Counsel:
For
the Applicant:
J. J. Schreuder
Instructed
by:
Advocate's Chambers, Kimberly
For
the Respondent :
K. F. Ilanga
Instructed
by:
Director of Public Prosecutions, Northern Cape
[1]
S
v Malgas
2001
(1) SACR 469
(SCA);
2001 (2) SA 1222
; [2001)
3 All SA 220
; R v S
1958 (3) SA
102(A)at104.
[2]
S
v Vilakazi
2009
(1) SACR 552
(SCA); Vilakazi v S
[2008] ZASCA 87
;
(2008) 4 ALL SA 396
(SCA) para 58.