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[2018] ZASCA 148
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Kekana v S (37/2018) [2018] ZASCA 148; 2019 (1) SACR 1 (SCA); [2019] 1 All SA 67 (SCA) (31 October 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 37/2018
In the matter
between:
LESIBA SIMON
KEKANA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Kekana
v The State
(37/2018)
[2018] ZASCA 148
(31 October 2018)
Coram:
Shongwe
ADP, Majiedt, Van der Merwe, Molemela and Makgoka JJA
Heard:
18
September 2018
Delivered:
31 October
2018
Summary
:
Criminal law and Procedure – appeal against sentence –
premeditated murder – appellant pleaded guilty in terms
of
s
51(2)
of the
Criminal Law Amendment Act 105 of 1997
– even a
few minutes enough to constitute premeditation – court
exercising its power in terms of
s 322(6)
of the
Criminal Procedure
Act 51 of 1977
– court retains its inherent power and therefore
entitled to consider life imprisonment in terms of
s 51(1)
as a
sentencing option – appeal dismissed – appellant
sentenced to life imprisonment on each of the murder counts.
ORDER
On
appeal from: Limpopo
Division,
Polokwane (Makgoba JP, Kgomo and Semenya JJ sitting as court of
appeal):
1 The appeal is dismissed, subject to what is stated in
2 below.
2 The order of the court a quo is set aside and
substituted with the following:
‘
1
The sentences imposed by the trial court on counts 1, 2, 3 and 4 are
set aside and substituted with the sentences of life imprisonment
on
each of those counts. The sentence imposed on count 5 stands.
2 The sentences on counts 2, 3, 4 and 5 shall run
concurrently with the sentence on count 1.
3 The substituted sentences are ante-dated to 29 April
2016.’
JUDGMENT
Makgoka
JA (Shongwe DJP, Majiedt, Van der Merwe and Molemela JJA concurring)
[1]
In the early hours of 6 September
2015, the sleepy village of Moletlane in Zebediela, Limpopo Province,
woke up to the shocking
news of the gruesome murder of four little
children: Hlologelo (13), Keneilwe (10) Bokang (6) and Lekgoledi (4).
They had been
killed by their father, the appellant, who slit their
throats with a knife. The appellant was subsequently indicted on four
counts
of murder and one count of assault with intent to do grievous
bodily harm. The latter count concerned an assault on his wife, the
mother of those children, Mrs Lorraine Kekana (Mrs Kekana) on 21 June
2015.
[2]
In its summary of substantial facts
that accompanied the indictment in terms of
s 144(3)(
a
)
of the Criminal Procedure Act 51 of 1977 (the CPA), the State averred
that the murders were pre-planned. As a result, the formulation
of
the indictment was such that the murder counts were to be read with
the provisions of s 51(1) of the Criminal Law Amendment
Act 105 of
1997 (the CLAA). In terms of the latter section, in the event of a
conviction, the applicable sentence was life imprisonment
on each of
the murder counts, unless substantial and compelling circumstances
were present.
[3]
The appellant appeared before
Raulinga J on 25 April 2016. He
pleaded
guilty to all five counts, and submitted a written statement in terms
of s 112(2) of the CPA, which the State accepted.
In
paragraph 8 of the written statement the appellant stated that he
pleaded guilty to the murder counts ‘in terms of s 51(2)
of 105
of 1997’. Apart from this reference to s 51(2) of the CLAA, it
is not mentioned anywhere in the statement what the
relevance of that
reference was, nor are there any facts set out why the appellant
pleaded guilty ‘in terms of s 51(2)’.
I shall revert to
this aspect.
[4]
The appellant was convicted on the
basis of his guilty plea in terms of s 112(2) of the CPA. On 29
April 2016 he was sentenced
to 20 years’ imprisonment on each
of the murder counts, and to two years’ imprisonment on the
count of assault with
intent to do grievous bodily harm. Ten years of
each sentence on counts 2, 3 and 4 were ordered to run concurrently
with the sentence
on count 1. The effective sentence was thus 52
years’ imprisonment. The appellant appealed to the full court
against the
sentence imposed for the murder counts, which appeal was
unsuccessful. This further appeal is with the special leave of this
court.
[5]
The crimes
committed by the appellant took place against the following factual
background.
[1]
As stated already, the
appellant and Mrs Kekana are married to each other. They had four
children – the deceased in the matter.
The parties did not live
together. The appellant lived in Moletlane with the deceased
children, while Mrs Kekana worked in Pretoria
and lived in Mamelodi,
east of Pretoria. The couple experienced marital problems.
[6]
On 4 September
2015, the appellant drove to Mamelodi with the children to visit Mrs
Kekana. It was with a view to resolving their
marital problems, with
the assistance of their families. The meeting, instead of resolving
their problems, exacerbated them. It
emerged later in the discussions
between the appellant and Mrs Kekana that the latter had an
extra-marital affair. Later that evening,
she informed the appellant
that she had spoken to her lover and had terminated the extra-marital
relationship. However, when the
appellant later called the lover in
question, the latter not only admitted to the affair, but denied that
it had been terminated.
An argument ensued between the appellant and
Mrs Kekana. The appellant decided to leave that night and drove
back to Moletlane
with the children. Upon arrival, he called Mrs
Kekana to inform her that they had arrived safely. Further argument
between the
parties continued over the phone. During that telephone
conversation, Mrs Kekana repeated an assertion she had made to the
appellant
on a previous occasion, that the appellant was
‘nothing’.
[2]
[7]
What happened thereafter is set out
in graphic and gory detail in the appellant’s written statement
in terms of s 112(2) of
the CPA:
‘
I got extremely angry and
decided that I should kill myself. Immediately after hanging up the
phone Bokang Kekana, the deceased
in count [3], came to where I was.
I then thought of what will happen to my children since they were
staying with me and I was
the one taking care of them. I thought that
they will suffer without me. I immediately took a knife and cut
Bokang Kekana’s
throat with intent to kill him and he died as a
result.
My other three
children were in their bedroom. Immediately after killing the
deceased in count [3], the deceased in count [1], Hlologelo
Clement
Kekana, came to the sitting room. I gave [him] the phone to say
goodbye to [his] mother, afterwards I cut his throat with
a knife
with intent to kill him and he died as a result.
I then immediately
proceeded to the bedroom where my other two children were sleeping.
On my arrival I found Keneilwe Kekana the
deceased in count [2]
sleeping on a sponge. I cut his throat with a knife with the intent
to kill him and he died as a result.
When I finished killing the
deceased in count [2] I immediately cut Lekgoledi Kekana, the
deceased in count [4] on his throat with
a knife with intent to kill
him and he died as a result. All the deceased are my biological
children. I then cut my throat with
intent to kill myself but
unfortunately I did not die. I then took a rope with the intent to
hang and kill myself. While I was
busy I heard a knock on the door
and people came and called [the] police. I was arrested and taken to
hospital for treatment.’
[8]
The injuries to which the children
succumbed, are described in post-mortem medical reports in respect of
each. Each of them suffered
a deep horizontal incised wound (of
varying sizes) to the neck and a severed airway. The cause of death
in respect of each one
of them is recorded as ‘SHARP FORCE
TRAUMA TO THE NECK’.
[9]
In the notice of appeal and written
submissions filed on behalf of the appellant in this court, the
sentence was assailed on three
broad propositions. First, it was
contended that the sentence was harsh, disproportionate and induced a
sense of shock. In this
regard, it was further submitted that the
trial court misdirected itself by not ordering the sentences in
counts 2, 3 and 4 to
run concurrently with the sentenced imposed in
count 1. Second, that the trial court misdirected itself by imposing
a sentence
in excess of the minimum sentence of 15 years’
imprisonment in respect of each murder count, without identifying the
aggravating
circumstances to justify the increased penal
jurisdiction. Lastly, it was contended that the trial court
misdirected itself in
finding that there were no substantial and
compelling circumstances warranting a deviation from the prescribed
minimum sentences.
[10]
Upon perusal of the record, a notice
was issued to the parties informing them that this court was
considering exercising its power
in terms of s 322(6) of the CPA. The
section provides the court of appeal with the power to impose a
punishment more severe than
that imposed by a lower court. Counsel
for the parties were requested to file supplementary written
submissions on this aspect.
Both counsel obliged. Accordingly, the
matter is properly before this court for the exercise of the
discretion conferred by the
section.
[11]
In his supplementary written
submissions, counsel for the appellant urged this court not to
exercise its power in terms of s 322(6),
as the circumstances of this
case do no warrant that. Counsel’s submissions can be
summarised as follows: the appellant’s
main complaint was that
the trial court had misdirected itself by, without giving reasons
therefor, imposing a sentence of 20 years’
imprisonment on each
murder count, instead of the prescribed 15 years. This, he argued,
was at odds with what this court held in
S
v
Mathebula
& another
[2011] ZASCA 165
;
2012
(1) SACR 374
(SCA) para 11. There, this court held that a sentencing
court should identify the circumstances that impel it to impose a
sentence
higher than the prescribed minimum sentence, and explain why
a departure from the prescribed sentence is justified.
[12]
Accordingly, counsel submitted that
it would be unfair to the appellant, who while expecting this court
to reduce his sentence in
accordance with the above dictates, is
instead confronted with the prospect of his sentence being increased
in terms of s 322(6)
of the CPA. This was so, contended counsel,
especially given that the appellant had pleaded guilty in terms of s
51(2) of the CLAA,
which plea was accepted by the State. He
submitted, in the circumstances, that the appellant was entitled to
expect the court to
impose the prescribed minimum sentence in terms
of that section, unless the court found aggravating circumstances to
justify a
sentence more than the prescribed one. Counsel also urged
this court not to invoke the provisions of s 322(6) of the CPA
lightly,
as this could deter would-be appellants from exercising
their constitutionally entrenched right to appeal.
[13]
The sole issue in the appeal is
whether the sentence imposed by the trial court was appropriate in
the circumstances. Related to
it, is the nature and effect of the
appellant’s ‘plea in terms of s 51(2)’ of the CLAA.
I consider that issue
first.
[14]
As stated already, apart from that
cryptic reference, there is no indication in the appellant’s
plea explanation as to why
reference was made to that sub-section. In
other words, it was simply mentioned without any basis or
explanation. I assume, however,
in the appellant’s favour, that
the purpose was to suggest that the murders were not premediated or
pre-planned. If they
were, s 51(1) of the CLAA was applicable, and
the appellant faced life imprisonment on each murder count, unless
substantial and
compelling circumstances were present. Thus, the
appellant sought to bind the trial court to a sentence of 15 years’
imprisonment
on each murder count, in terms of s 51(2).
[15]
The trial court proceeded on that
footing, and in light of that reference, it considered itself
precluded from considering life
imprisonment as a sentencing option.
In this regard, the learned trial judge stated the following in his
judgment on sentence:
‘
I have been told that the
approach to sentencing the accused should be that the minimum
sentence of life [imprisonment] should not
apply. Indeed that is true
because the accused pleaded guilty in terms of section 112(2) [of]
Act 51 of 1977.
[3]
The State Counsel accepted the
plea and therefore, this court must deviate from life sentence.’
[16]
I have serious conceptual difficulty
in accepting that a trial court’s sentencing discretion can be
fettered in the manner
it was done in this matter. The trial court
seemingly had in mind the trite principle that the State is entitled
to accept an accused’s
plea of guilty on a lesser or alternate
charge. Corollary to that, is that the court has no power to refuse
the State’s acceptance
of such plea, and must sentence the
accused on the basis of the plea accepted by the State. See
S
v Ngubane
1985 (3) SA 677
(A) at
683E-F, where Jansen JA explained the nature and effect of the
procedure in terms of which the prosecutor accepts the accused’s
plea of guilty on a lesser or alternative charge, as follows:
‘
It must be seen as a
sui generis
act by
the prosecutor by which he limits the ambit of the
lis
between
the State and the accused in accordance with the accused’s
plea. Whether one in a case such as the present speaks
of amendment,
withdrawal or abandonment of the murder charge does not really seem
to matter. That the
lis
is restricted by acceptance of the
plea appears from ss 112 and 113. The proceedings under the
former are restricted to the
offence “to which he has pleaded
guilty” and the latter must be read within that frame.’
[17]
To my mind, the present case is
distinguishable from those where a prosecutor accepts a plea of
guilty on a lesser charge, as was
the case in
Ngubane
and
S v
Tshilidzi
[2013] ZASCA 78
.
In this case, the appellant had not pleaded to a lesser or
alternative charge. He pleaded guilty to murder, subject to the penal
provisions of the CLAA. In the former cases, the focus is on the type
of offence the accused ought to be convicted of. The State
is in
charge of that process. As Van der Merwe AJA explained in
Tshilidzi
at
para 9, the State delineates the
lis
between it and the accused by deciding to accept a plea on a lesser
charge. The acceptance by the prosecutor of the plea of guilty
on the
alternative charge has the result of removing the main charge from
the indictment. It follows that a conviction on the main
charge could
not stand.
In other words, in such a case,
it is up to the State to determine the offence that the accused is
convicted of. The court has no
say in that, and must sentence the
accused in accordance with the accepted plea.
[18]
The converse is true in the present
case. It concerns the sentence and not the offence. Here, the role of
the State and that of
the accused is limited to the presentation of
aggravating and mitigating circumstances, respectively. This is
because sentence
is pre-eminently a matter within the judicious
discretion of a trial court. See
S v
Sadler
[2000] ZASCA 105
;
[2000] 2 All SA 121
(A) para 6.
As a result, the ultimate decision as to which sentence to impose,
remains with the court. Seen in this light, one
cannot refer to a
lis
between the State and the accused in the true sense, when it comes to
sentence. This is because of the unique and central role
played by
the court during the sentencing stage. And where the provisions of
the CLAA are applicable, neither the State nor the
appellant can oust
the court’s increased penal powers provided for in s 51(1), by
a passing reference to s 51(2).
[19]
As a general
proposition, where the minimum sentences provided for in the CLAA are
applicable, an accused is not entitled to pre-determine
or pre-empt
his or her sentence by referring, without more, to s 51(2).
[4]
If he or she wishes for that
sub-section to apply, and for the resultant lesser sentence to be
considered, he or she must set out
the facts from which such
conclusion can be premised. Without such facts, the court is not
restricted to a lesser sentence merely
because the accused had made
reference to s 51(2). To accept otherwise would lead to absurd
consequences.
[20]
In the present case, such an
approach would mean that even if the court, on a consideration of the
facts, found the murders to be
premediated or pre-planned, it would
be precluded from even considering life imprisonment, by reason only
of the fact that the
State had accepted an unsubstantiated plea ‘in
terms of s 51(2)’. This would be untenable. As I demonstrate
later,
the facts in this case show that there was premeditation on
the part of the appellant when he killed his children. It is
therefore
difficult to accept that an unexplained, unsubstantiated
and a fleeting reference to s 51(2) in a guilty-plea embodied in the
s
112(2) statement, should render the court impotent to consider life
imprisonment in terms of s 51(1). That would amount to placing
form
over substance.
[21]
In summary therefore, it was for the
appellant to lay a factual foundation for a conclusion that the
murders were not premeditated,
and the issue was one for the trial
court to decide. In coming to a decision, the court would have had
regard to all the circumstances
of the murders, including the
appellant’s actions during the relevant period. Anything short
of this could not bind the court
to the sentence in terms of s 51(2)
of the CLAA.
[22]
There is another reason why the
suggestion that the court’s power to consider the prescribed
minimum sentence in terms of
s 51(1) can be ousted simply by mere
reference to s 51(2) in a plea explanation, is untenable. The
provisions of the CLAA do not
create different or new offences, but
are relevant to sentence. Thus, murder remains murder, as a
substantive charge, irrespective
of whether s 51(1) or s 51(2)
applies. Simply put, there is no such charge as ‘murder in
terms of s 51(1) or s 51(2)’.
It follows that there can never
be a plea to such a non-existent charge.
[23]
As Cameron JA explained in
S
v Legoa
2003 (1) SACR 13
(SCA) para 18,
with reference to Rumpff CJ’s observations in
S
v Moloto
1982 (1) SA 844
(A) at 850C-D:
‘
It is correct that, in
specifying an enhanced penal jurisdiction for particular forms of an
existing offence, the legislature does
not create a new type of
offence. Thus, “robbery with aggravating circumstances”
is not a new offence. The offences
scheduled in the minimum
sentencing legislation are likewise not new offences. They are but
specific forms of existing offences,
and when their commission is
proved in the form specified in the Schedule, the sentencing court
acquires an enhanced penalty jurisdiction.
It acquires that
jurisdiction, however, only if the evidence regarding all the
elements of the form of the scheduled offence is
led before verdict
on guilt or innocence, and the trial court finds that all the
elements specified in the Schedule are present.
(As pointed out
earlier, it is different when the element specified in the Schedule
relates not to the offence, but to the person
of the accused, such as
rape when committed “(iii) by a person who has been convicted
of two or more offences of rape, but
has not yet been sentenced in
respect of such convictions”.).’ (Footnotes omitted.)
[24]
When viewed in this light, the
purpose of reading a particular charge with the provisions of the
CLAA is essentially two-fold. First,
to alert the accused of the
applicability of the prescribed minimum sentence. Second, to afford
the accused an opportunity to place
facts before the court on which a
deviation from the prescribed sentence would be justified, nothing
more. It follows therefore
that a plea to a particular charge ‘in
terms of s 51(2)’ without stating the facts why that
sub-section, and not s
51(1), should be applicable, is a misnomer,
and a mere surplusage. Its acceptance by the State has no bearing on
the courts’
power to consider an appropriate sentence on the
charge to which an accused has been convicted of.
[25]
Although considered in the context
of a concession by the State, I consider analogous, the approach of
this court in
S v Nedzamba
[2013]
ZASCA 69
;
2013 (2) SACR 333
(SCA). The appellant had been charged
with rape. The indictment made no reference to the provisions of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
. It was argued on appeal that the appellant had been charged
with the common law offence of rape when it had been abolished by the
Act and that consequently the convictions and related sentences had
to be set aside. The State conceded the point advanced on behalf
of
the appellant. Declining to be bound by the State’s concession,
this court made an observation that the concession was
made ‘without
careful reflection’ and pointed out to the obvious ‘absurd
consequences that would follow’.
(Paragraphs 8 and 9).
[26]
The sum total of the above
observations is this. Where an accused is charged with an offence
subject to or read with s 51(1) of
the CLAA, and he or she wishes
that, for purpose of sentence, s 51(2), instead of s 51(1), should be
applicable, he or she must
place facts before the court, why that
should be the position. This is irrespective of whether he pleads
guilty or not guilty.
If he pleads guilty, and tenders a written
statement in terms of s 112(2) of the CPA, those facts must clearly
and pertinently
appear in that statement.
[27]
In
S v
Negondeni
[2015] ZACSA 132 para 11 it
was explained that a statement in terms of s 112(2) handed in to
support and explain a plea of guilty
to a charge of murder ought to
address such factors as the cause of death and the intention of the
accused at the relevant time.
Thus, a cryptic, unexplained reference
to s 51(2) such as the one in the present case, is certainly not
sufficient to mutate the
sentencing regime from the purview of s
51(1) to s 51(2). It must be emphasised in this regard that even
where such facts are stated,
the discretion of the court to consider
and impose an appropriate sentence remains extant.
[28]
In the particular circumstances of
the present case, the trial court was entitled to consider life
imprisonment as a sentencing
option, irrespective of the State’s
acceptance of an unsubstantiated ‘plea in terms of s 51(2)’.
The dictates
of justice and the need to avoid absurd consequences
demanded this. It must also be borne in mind that irrespective of the
minimum
sentences provided for in the CLAA, the court retains its
inherent power to consider life imprisonment, if the gravity of the
offences
so requires.
[29]
By considering itself precluded from
imposing life imprisonment only for the reason that the appellant had
pleaded in ‘terms
of s 51(2)’, and without more, the
trial court misconceived the reach of its powers as a sentencing
court, and misdirected
itself in the process. It is a misdirection
which materially influenced its approach to sentence – the type
envisaged in
S v Pillay
1977
(4) SA 531
(A) at 535E-F as being ‘of such a nature, degree, or
seriousness that it shows, directly or inferentially, that the Court
did not exercise its discretion at all or exercised it improperly or
unreasonably’. Accordingly, this court is at large to
consider
sentence afresh, an aspect to which I turn.
[30]
When considering an appropriate
sentence, the lodestar remains the enduring triad – the crime,
the offender and the interests
of society, as enunciated in
S
v
Zinn
1969 (2) SA 537
(A) at 540G. In
S v
Rabie
1975 (4) SA 855
(A) 862A-B the
main purposes of punishment were reiterated as being deterrence,
prevention, reformation and retribution.
[31]
The following are the appellant’s
personal circumstances. He was 37 years old when he was sentenced,
and a first offender.
He is one of the seven children in his
family. He passed matric, but could not further his studies due to
financial constraints.
At the time of commission of the offences, he
was married, although his marriage was strained. He was employed as a
driver. He
spent seven months in custody awaiting the finalisation of
his trial.
[32]
As to the nature of the offences, it
is indeed difficult to imagine a more callous and despicable deed
than a parent killing his
own children.
One
after the other, the appellant slaughtered each of his children like
animals. Meanwhile, their mother, who was some 280 kilometers
away in
Pretoria, was, on the appellant’s own admission, forced to
listen helplessly to the killing of one of her children,
after the
horrific killing of his sibling. One can only imagine the horror of
all the children when their supposedly loving father,
protector and
provider, summarily extinguished their lives in the most cruel
manner.
[33]
The brutality and venom which went
into the slaughter of the children is gruesomely depicted in the
photo album showing their blood-soaked
bodies. I have earlier
referred to the post-mortem examination reports in respect of all
four children which reveals in horrific
detail, the nature and extent
of the injuries inflicted on them. It is significant that the
appellant could not bring to bear the
same brutality onto himself
when his own efforts to commit suicide failed.
[34]
Undoubtedly, the very fact that
these were the appellant’s own children, is extremely
aggravating. The children reposed trust
in him as their protector and
provider. A further aggravating factor is that the appellant caused
his wife to listen over the phone
to the slaughter of one of her
children. This leads to an ineluctable conclusion that the appellant
killed the children in order
to spite his wife for having an
extra-marital affair and for rejecting him. He used his children as
pawns to be sacrificed in his
battle with his wife. Another
consideration which counts against the appellant is that he seems to
be disposed to violence. It
should be remembered that on 21 June
2015, just over two months before the killings, the appellant had
savagely attacked his wife
with an axe for spurning his sexual
advances.
[35]
During argument in this court it was
submitted on behalf of the appellant in mitigation, that it should be
considered that the appellant
had lost his beloved children, and has
thus suffered loss. This is an exasperating submission. By projecting
himself as a victim
of some sort, reflects the appellant’s
self-absorption. It is egregious in the extreme, and distastefully
insensitive to
Mrs Kekana, the mother of the children, and her
family. The submission is mentioned merely to be rejected.
[36]
It was also submitted that the
appellant’s conduct occurred on the spur of the moment, and
that his actions were not premeditated.
I disagree. The appellant’s
overall conduct puts paid to that suggestion. It all began with the
argument he had with his
wife, after which he decided to commit
suicide. He rationalised to himself that his children would suffer in
his absence. He killed
the first child, after which he instructed one
of the children to call his wife. He caused his wife to listen to the
horror of
the killing.
[37]
This conduct, to my mind, points to
pre-planning or premeditation. In this regard, one must bear in mind
what this court said in
S v Kekana
[2014] ZASCA 158
at para 13, that premeditation does not necessarily
entail that the accused should have thought or planned his or her
action for
a long period of time in advance before carrying out his
or her plan. This is because ‘even a few minutes are enough to
carry
out a premeditated action’.
[38]
I turn now to the interests of
society. The community expects courts to mete out appropriate
sentences, given the increasing rate
of violent crimes like murder,
against the vulnerable in our society, including children.
Given
that expectation, the sentence that is imposed should, among others,
reflect the community’s indignation over the
appellant’s ghastly deeds. It must communicate an unequivocal
message that
this court will impose the heaviest possible sentence
against those convicted of heinous crimes, especially against
innocent children.
[39]
Due to the seriousness of the
offences, it is required that the elements of retribution and
deterrence should come to the fore,
and that the rehabilitation of
the appellant should be accorded a smaller role. His personal
circumstances similarly have to bow
to the interests of society. As
pointed out in
S v Vilakazi
2009 (1) SACR 552
(SCA)
para 58, in cases of serious crime the personal circumstances of the
offender, by themselves will necessarily recede into
the background.
Without doubt, this is one of those cases.
[40]
As was stated in
S
v Di Blasi
1996 (1) SACR 1
(A) at
10
f-g
:
‘
The requirements of society
demand that a premeditated, callous murder such as the present should
not be punished too leniently
lest the administration of justice be
brought into disrepute. The punishment should not only reflect the
shock and indignation
of interested persons and of the community at
large and so serve as a just retribution for the crime but should
also deter others
from similar conduct.’
[41]
In
S
v Mhlakaza & another
1997
(1) SACR 515
(SCA) at 519
c-e
this court pointed out that given the high levels of violence and
serious crime in our country, when sentencing such crimes, the
emphasis should be on retribution and deterrence. Harms JA went on to
explain, with reference to
S
v Nkwanyana & others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 749C-D, that in other instances retribution
may even be decisive.
[5]
See also
S
v Nkambule
1993 (1)
SACR 136
(A) at 147
c-e
;
S v Swart
2004
(2) SACR 370
(SCA) paras 11 and 12;
S
v Govender
&
others
2004 (2) SACR 381
(SCA) para 32.
[42]
The upshot of all these authorities
is that whatever the appellant’s complimentary personal
circumstances and his prospects
of rehabilitation, those pale into
insignificance when weighed against the aggravating factors.
In
all the circumstances,
I am of the view that life
imprisonment on each of the murder counts is the only appropriate
sentence.
[43]
In the result the following order is
made:
1 The appeal is dismissed, subject to what is stated in
2 below.
2 The order of the court a quo is set aside and
substituted with the following:
‘
1
The sentences imposed by the trial court on counts 1, 2, 3 and 4 are
set aside and substituted with the sentences of life imprisonment
on
each of those counts. The sentence imposed on count 5 stands.
2 The sentences on counts 2, 3, 4 and 5 shall run
concurrently with the sentence on count 1.
3 The substituted sentences are ante-dated to 29 April
2016.’
_______________
T M Makgoka
Judge of Appeal
APPEARANCES:
For
the Appellant: DJ Nonyane
Instructed
by: Justice Centre, Polokwane
Justice
Centre, Bloemfontein
For
the Respondent: J Kotzé
Instructed
by: Director of Public Prosecutions, Polokwane
Director
of Public Prosecutions, Bloemfontein
[1]
This is distilled largely from
the appellant’s written plea of guilty in terms of s 112 of the
Criminal Procedure Act 51 of
1977 (the CPA), and the evidence in
mitigation of sentence.
[2]
The first occasion during
which Mrs Kekana mentioned this was on 21 June 2015. While she was
home for the weekend, the appellant
requested to have sexual
intercourse with her. She rebuffed his advances and told him that
‘he was nothing’ and that
she felt ‘dirty’
whenever she had sexual intercourse with him. The appellant became
angry and chopped Mrs Kekana’s
hand with an axe. This incident
formed the basis of count 5.
[3]
It must be accepted that the
learned Judge meant to refer to
s 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
, instead of
s 112(2)
of the CPA.
[4]
Except in the limited
circumstances permitted by the law, for example, when entering into
a plea bargain in terms of
s 105A
of the CPA.
[5]
During argument before the
full court, a member of that bench stated, without reference to any
authority, that
S v
Mhlakaza & another
1997
(1) SACR 515
(SCA) had been overturned ‘by a subsequent case’.
Despite a diligence search being conducted, I have not found a case
of either this court or the Constitutional Court overturning
Mhlakaza.