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[2015] ZANCHC 8
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Isaaks v S (CA&R 117/14) [2015] ZANCHC 8 (20 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
DATE: 20 MARCH 2015
Case No: CA&R 117/14
In the matter:
PETRUS JOHANNES
ISAAKS
.......................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: Tlaletsi AJP et Phatshoane J
Heard on: 01-12-2014
Delivered on: 20-03-2015
JUDGMENT ON APPEAL
Phatshoane J:
1. Mr Petrus Johannes Isaaks aged 76,
the appellant, was arraigned before Mr View in the Regional Court for
the district of Gordonia,
Upington, on a charge of murder read with
the provisions of
s 51(2)
of the
Criminal Law Amendment Act, 105 of
1997
. The State alleged that on 03 January 2011 he unlawfully and
intentionally killed 56 year old Ms Miena Andries at or near
Morning-glory,
Upington. On 23 February 2012 he was convicted of
murder and sentenced to 15 years imprisonment. With leave of the
trial Court
he is before us on appeal against his sentence only.
2. The appellant pleaded not guilty to
the charge. The State led the testimony of two eye witnesses, Ms
Maria Andries, the deceased’s
sister, and Mr Daniel Hermanus
Van Rooy. During the course of the trial the appellant confessed to
having caused the deceased’s
death with dolus eventualis as the
mode of intention.
3. Ms Andries testified that on 03
January 2011 the deceased arrived at their parental home in the
afternoon followed by the appellant.
The deceased enquired from the
appellant: “Wat loop jy so al agter my aan”. The two went
out through the door. Not
long thereafter the deceased returned and
called on Ms Andries: “Meisie, Meisie, kom kyk hierdie Oupa
steek my”.
When she got out of the door she saw the appellant
stab the deceased in the chest with a 30 cm butcher knife which he
left stuck
in the deceased’s chest and departed the scene.
Another witness, Mr Van Rooy, also saw the appellant pursue the
unarmed deceased
and stabbing her with the knife in the chest. He
also observed the deceased stagger inside the yard and fall at the
veranda. It
was put to these witnesses that the appellant denied that
he stabbed the deceased. The defence suggested that the wounds she
sustained
were self-inflicted in that she fell on the knife that
lodged in her chest.
4. The State also relied on the
evidence of Dr George Albertus Isaacs who performed the post-mortem
examination. He testified that
the wounds that the deceased sustained
could not have been self-imposed because at least three of them were
located on her back.
From the autopsy report the deceased had a total
of five stab wounds. Dr Isaacs testified that one wound was 4 x 1.5
cm in front
of the chest on the left and was 25 cm deep. This
incision entered the chest between the first and second ribs severing
the aorta.
When the body of the deceased was brought in for the
post-mortem examination the knife was still lodged in her chest. He
suggested
that this wound is typical in cases where the assailant and
the victim were facing each other when the injury is inflicted,
regard
being had to where it is situated and its trajectory. The
doctor further testified that the deceased had a 4.5 x 1 cm
superficial
wound on the right thigh on the front side; two wounds of
4 x 1.5 cm and 2 x 1 cm on her back; and lastly a 3 x 1 cm wound on
the
back of the left arm. Dr Isaacs concluded that the cause of death
was a stab in the aorta with hypovolemic shock (rapid or excessive
blood loss).
5. Belatedly, at the end of Dr Isaacs’s
testimony, the defence informed the Court that the appellant wished
to make certain
admissions in terms of s 220 of the Criminal
Procedure Act, 51 of 1977 (the CPA), but that he was unable to do so
because the State
had already closed its case. In view of this, the
State brought an application to re-open its case. Thereafter the
following admissions
in terms of s 220 of the CPA were recorded:
“..(E)k wens die volgende
erkennings aan die hof te maak:
Ek erken dat op 03 Januarie 2011 en te
of naby Upington, ek in die streekafdeling Noord-Kaap was. Ek erken
dat ek al daar vir Miena
Andries gedood het deur haar met ‘n
mes te steek. Ek erken die identiteit van die oorledene as die van
Miena Andries.
Ek erken die inhoud van die
regsgeneeskundige lyskouingsverslag as korrek. Ek erken dat van dat
die oorledene die beserings opgedoen
het tot dat die
regsgeneeskundige lyskouing op haar uitgevoer was het sy geen verdere
beserings opgedoen nie.
Ek het verkeerd opgetree. Ek het geweet
dat as ‘n mens ‘n ander met ‘n mes steek dan kan so
‘n persoon sterf
en nogtans het ek steeds voortgegan en haar
gesteek.
Die onstandighede waaronder die misdryf
gepleeg was is as volg: ek en die oorledene was saamleefmaats. Ek en
die oorledene en ene
Tilla was by ‘n sjebien. Die oorledene het
gesê “kan ‘n blinde oupa nie loop lȇ nie”.
Tilla
het toe geantwoord “hoekom moet hy dan nou weer loop lȇ,
hy het dan nou net opgestaan’. Ek het nie geantwoord nie.
Die
klomp het toe al van vroegoggend af gedrink. Tilla se ma het toe daar
aangekom met ‘n groot kan wyn en toe gooi sy vir
my ‘n
glas vol wyn en toe drink ek die wyn uit. Die oorledene maak my toe
jaloers en sȇ vir my ‘sien jy hierdie
jong man wat hier
sit, hy is my nuwe kȇrel’. Toe vlieg die jong man op en
wou toe vir haar skop. Die jong man sȇ
toe ‘hierdie ouma
aanvaar jou as vanselfsprekend en sy speel met jou. Ek het toe nie
geantwoord nie. Ek stap toe na Maria
se huis toe. Ek was baie
seergemaak. Die oorledene het my geminag. Die oorledene het ook daar
gekom en in die kombuis het ek die
mes gevat. Buite die huis het sy
gesȇ ek is nie haar pa nie and haar seun is nie haar ma nie. Ek
wou haar toe skrikmaak en
dien haar toe die oppervlakkige wonde toe.
Daarna het ek haar gesteek in haar bors
en ek het geloop. Ek het geloop want ek was onder die invloed van
drank en het nie gedink
sy is dood op daardie stadium nie. Ek het
steeds geweet wat ek doen. Ek was baie lief vir haar. Ek erken ek het
besef dat sy kan
sterf as gevolg van die wonde maar ek het steeds
geloop. Ek het berou oor my optrede en vra die familie van die
oorledene, die
agbare hof en die gemeenskap om verskoning. Dit is al
wat ek wens te verklaar.”
6. Following the admissions mentioned
in the preceding paragraph the State and the defence closed their
respective cases. The appellant
did not testify. It should be
mentioned that the trial Court granted leave to appeal against the
sentence on a narrow ambit of
whether it properly considered the
appellant’s personal circumstances. The appellant was 75 years
old at the time of the
fateful incident. He has no previous
conviction; he is a partially blind pensioner and had passed stand 6
(grade 8) at school.
The deceased had been his life partner for at
least a decade.
7. The grounds of appeal are not only
confined to the appellant’s personal circumstances but also
cover extensive issues on
the merits. He states that the Court erred
in not finding that there were substantial and compelling
circumstances present in his
personal circumstances or in the
circumstances in which the offences were committed, justifying a
departure from the imposition
of the prescribed sentence; and that
the sentence imposed was shockingly severe and inappropriate.
8. Mr V.Z. Nel, for the appellant,
argued that the trial Court over-emphasized the seriousness or the
violent nature of the offence
by directing his attention to
irrelevant considerations which increased the appellant’s moral
blameworthiness: Firstly, that
the Court found that a large knife was
used. Counsel is of the view that the fact that a large knife was
used is neutral. Secondly,
he argued that the trial Court’s
conclusion to the effect that had the blade not been stuck in the
deceased’s body
the appellant would have continued to stab her
was wrong. In any event, he pressed, there was no evidence to support
this conclusion.
Lastly, that the Court classified the relationship
between the appellant and the deceased as characterised by domestic
violence
when there was no factual basis for this inference, save the
inadmissible hearsay evidence adduced through Ms Andries, the
deceased’s
sister.
9. Counsel further contended that the
sentence imposed catered for and served retribution and general
deterrence to satisfy the
public opinion or interest while individual
deterrence and rehabilitation were ignored. He submitted that the
appellant showed
contrition through his plea of guilty and that this
factor is indicative of his good prospects of rehabilitation.
10. It was also argued on the
appellant’s behalf that the Court erred in finding that he was
not provoked because the evidence
set out in the s 220 admission
disclosed provocation. That any finding to the contrary leads to an
improbable inference that the
murder was premeditated and executed in
a calculated fashion. It was further argued that the Court erred in
finding that the only
favourable mitigating factor present was the
appellant’s age and ignored that his health condition,
including his age, his
stable employment history; that he was a first
offender and that alcohol was involved were all weighty extenuating
factors.
11. In S v Kibido
1998 (2) SACR 213
(SCA) at 216g-j the Court reaffirmed the approach to sentencing by an
appellate Court as follows:
“Now, it is trite law that the
determination of a sentence in a criminal matter is pre-eminently a
matter for the discretion
of the trial court. In the exercise of this
function the trial court has a wide discretion in (a) deciding which
factors should
be allowed to influence the court in determining the
measure of punishment and (b) in determining the value to attach to
each factor
taken into account (see S v Fazzie and Others
1964 (4) SA
673
(A) at 684A - B; S v Pillay
1977 (4) SA 531
(A) at 535A-B). A
failure to take certain factors into account or an improper
determination of the value of such factors amounts
to a misdirection,
but only when the dictates of justice carry clear conviction that an
error has been committed in this regard
(S v Fazzie and Others
(supra) at 684B - C; S v Pillay (supra) at 535E).
Furthermore, a mere misdirection is not
by itself sufficient to entitle a Court of appeal to interfere with
the sentence; it must
be 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 (see Trollip JA in S v Pillay (supra) at 535E - G).”
See also S v Moswathupa
2012 (1) SACR
259
(SCA) at 261d-f para 4, S v Sadler
2000 (1) SACR 331
(A) at
334h-335a para 8.
12. The crux of the appellant’s
contention is that the trial Court did not consider that in terms of
s 220 admissions his
mens rea was in the form of dolus eventualis.
Therefore, he did not premeditate the decision to kill and thereafter
set it in motion,
the argument went. I must immediately point out
that the State did not give any indication that it accepted the plea
as tendered
by the appellant through s 220. The Magistrate concluded
that the State proved its case beyond a reasonable doubt. The
appellant
was therefore found guilty of murder on the basis of the
evidence tendered by the State and not necessarily on the basis of
the
admissions he made. In the Magistrate’s reasons granting
leave to appeal he confirms that he did not find the appellant guilty
of murder with intent in the form of dolus eventualis. In my view the
25 cm deep stab wound severing the aorta, the multiple stab
wounds
and their location point to the direct intention to murder.
13. The Court a quo rightly rejected,
as mitigating factors, the alleged provocation and the submission to
the effect that the appellant
had been under the influence of alcohol
when perpetrating the offence. Save for the admissions in terms of s
220 of the CPA there
was no evidence to suggest that the appellant
was provoked or that he was under the influence of alcohol. By his
own admissions
he knew that what he did was wrong and should surely
know how to control his temper. In S v Mjoli and Another
1981 (3) SA
1233
(A) at 1247G-H the Court pronounced:
“Section 220 of the Act is not
applicable to the requirement of confirmation of a confession. This
is a statutory requirement
in terms of s 209 of the Act. It is not,
as contemplated by s 220, a fact proof of which may by an admission
be dispensed with.”
14. It has been held that an
'admission' must in the nature of the case be an admission of
something. The only thing which can be
admitted is a claim of the
opposite party and not of the party himself. Section 220 of the CPA
is concerned with the acceptance
of a fact which has been alleged by
the opposite party and not by the accused himself. See S v Dingoos
1980 (1) SA 595
(O) at 597. In S v Kuzwayo
1964 (3) SA 55
(N) the
Court held that the equivalent provision, s 284 (1) of the earlier
Criminal Procedure Act, 56 of 1955, the precursor of
the present s
220, was intended to relieve the State of the necessity of proving an
allegation which the accused admits and that
it was not intended to
be used by the defence as a means of getting on record something
which the State does not propose to make
part of its case. In my
view, it was simply not up to the appellant to make exculpatory
averments by means of s 220 and to rely
on them as conclusive proof
of such statements.
15. What was put to Ms Andries and Mr
Van Rooy by the defence, prior to the appellant’s admission
that he murdered the deceased,
is remarkable and went as follows:
15.1 That the wounds were
self-inflicted by the deceased when the appellant attempted to
retrieve the murder weapon from her;
15.2 That the appellant would say that
the deceased went into the kitchen and came out with a knife,
enquired from the appellant
if he had heard how a certain child
insulted her at the place they had earlier visited;
15.3 That the appellant replied that
the deceased instigated the clash;
15.4 That the deceased was eager to
confront “those people” but the appellant prevented her;
15.5 That the appellant twisted the
deceased’s arm so that she could release the knife. While the
deceased held the knife
she inflicted an injury to her leg;
15.6 It was further put to Ms Andries
that the deceased was very drunk and may have hurt herself with the
knife;
15.7 That at some point the appellant
grabbed her, twisted her arm, pushed her away from him and that the
deceased probably fell
on the knife;
15.8 That when the appellant left the
scene he did not even know that the deceased was hurt;
15.9 Ms Andries was also taken to task
in cross-examination to cast doubt on whether she in fact saw the
appellant stab the deceased.
16. From the contrived version set out
in the preceding paragraph it can hardly be said that the appellant
was remorseful. When
he confessed to the murder it had dawned on him
that he had no chance of escaping a conviction and changed his heart
by tendering
a guilty plea by way of s 220 admissions. The Magistrate
cannot be faulted in concluding that there was no contrition on his
part
because “the writing was on the wall” that the State
had an open and shut case against him. In S v Matyityi 2011(1)
SACR
40 (SCA) at 47 para 13 the Court made the following remarks:
“[13]….There is, moreover,
a chasm between regret and remorse. Many accused persons might well
regret their conduct,
but that does not without more translate to
genuine remorse. Remorse is a gnawing pain of conscience for the
plight of another.
Thus genuine contrition can only come from an
appreciation and acknowledgement of the extent of one's error.
Whether the offender
is sincerely remorseful, and not simply feeling
sorry for himself or herself at having been caught, is a factual
question. It is
to the surrounding actions of the accused, rather
than what he says in court, that one should rather look. In order for
the remorse
to be a valid consideration, the penitence must be
sincere and the accused must take the court fully into his or her
confidence.
Until and unless that happens, the genuineness of the
contrition alleged to exist cannot be determined. After all, before a
court
can find that an accused person is genuinely remorseful, it
needs to have a proper appreciation of, inter alia: what motivated
the accused to commit the deed; what has since provoked his or her
change of heart; and whether he or she does indeed have a true
appreciation of the consequences of those actions…”
17. The Magistrate took into account
the Zinn triad of factors relevant to the sentence he is enjoined to
consider (S v Zinn
1969 (2) SA 537
(A) at 540G – H). This
includes the appellant’s personal circumstances, his mature
age, the crime and the interest
of the society. The criticism that
the appellant’s personal and mitigating circumstances were not
identified escapes me.
The Magistrate painstakingly and fully
motivated why he accepted or rejected a particular factor as
mitigatory. Clearly, save for
his age, the appellant’s personal
and mitigating circumstances are nothing out of the ordinary and the
Magistrate correctly
concluded that they do not constitute
substantial and compelling circumstances. This should be weighed
against the aggravating
circumstances which far outweigh the
appellant’s personal circumstances.
18. The Magistrate appears to have
acknowledged that the fact that a large knife was used is a neutral
factor because, as he puts
it, a knife kills and its size matters
not. Much was also made of the inference the Magistrate drew that had
the knife not been
stuck in the deceased’s body the appellant
would have continued to inflict further stab wounds because he had
already executed
4 other stab wounds. While there was no evidence
that the appellant tried and failed to retrieve the stuck knife, it
is common
cause that it was only removed when the autopsy was
conducted. Ms Andries testified that “hy het hom so gesteek in
die bors
in, en toe die mes vas loop sit en toe los hy die mes in die
bors in”.
19. Mr Nel further contended that the
Magistrate wrongly concluded that the evidence of alleged domestic
violence was never challenged.
That may well be, however, the
appellant did not take the stand to rebut the allegation that he
physically abused the deceased.
Ms Andries testified that the
deceased came to stay with her three sisters at their parental home
around November 2010 because
the appellant physically abused her to
the extent that she landed at a hospital in Kimberley on one
occasion. Under cross-examination
Ms Andries expanded on this aspect
of her evidence as follows:
“Ja maar hy sȇ, luister wat
hy sȇ, hy sȇ sy het dit maar gedoen, dan gaan bly sy daar
by julle en dan gaan
sy weer terug na hom toe.---Dit is wanneer hy
hom so slaan wat sy huis toe kom en dan kom haal hy hom weer met mooi
woordjies terug
weer.
Hy sȇ dit is nie waar nie. Hy het
nooit die vrou mishandle nie---- Oeee, hy het dan in Kimberley
Hospitaal geloop draai al
soos hy hom breek en slaan”.
“….Dit is met die baklei
wat sy huis toe gekom het, maar sy het nie vir hom gesȇ hy kom
terug huis toe nie, sy
het vir ons gesȇ sy kom bly nou by die
huis, hy gaan nie meer vir hom so laat slaan nie.”
20. In S v Waldeck
2006 (2) SACR 120
(NC) this Court extensively dealt with the admissibility or otherwise
of hearsay evidence in circumstances almost similar to the
present.
The following dictum appears at 126 para 13 of that judgment:
“[13] It is a settled principle
or rule of our law of evidence that an accused person may adduce
hearsay evidence for his/her
own purposes, by giving such evidence
him-/herself or calling a witness to give such evidence, as appellant
attempted to do with
the discarded evidence of Ms Damoense (referred
to above), or an accused person may elicit hearsay evidence by way of
cross-examination,
as the defence has done in this instance (as will
be demonstrated hereinafter). Evidence adduced in this manner is
admissible,
and an adducer thereof cannot try to wriggle out of it
when the shoe pinches. See R v Bosch
1949 (1) SA 548
(A) at 553 - 4;
S v Mthembu
1988 (1) SA 145
(A) at 150; S v Mokoena
1978 (1) SA 229
(O); S v Olifant
1982 (4) SA 52
(NC); S v Minnie
1986 (4) SA 30
(E);
and, generally, Law of Evidence by C W H Schmidt and R Rademeyer
(loose-leaf) at ch 13-20 - 13-21”.
21. There was clearly no direct
evidence that the deceased was physically abused by the appellant.
However, it is not correct that
what was said by Ms Andries is
entirely hearsay evidence as counsel sought to argue. It merely
serves to proof what was reported
to her by the deceased and not the
veracity of the incidents of domestic violence. This is precisely
what the magistrate noted
in his sentence and it cannot be discerned
how this would have increased the appellant’s moral
blameworthiness:
“Nie op een stadium het jy ontken
enigsisns of instruksies aan adv Victor, wat sy gegee dat daar nie so
was nie. Daar was
weer ‘n stadium, adv. Victor wat sy gesȇ
het daar was nie aanrandings gepleeg nie. Sy het vir ons getuig, dit
is wat
die vrou vir ons gesȇ het en nie wat ek gesien het nie,
meneer. En dit was die getuienis wat voor die hof geplaas is. So dit
bly my te wees, Mnr Isaaks, dat daar was ook geweldsprobleme, hetsy
dit nou van jou af gekom het alleen of hetsy dit van jou vrou
af
gekom het, in julle huwelik of julle saamleefverhouding, geweld het
plaasgevind tussen julle twee.”
22. On the whole, I am satisfied that
the Magistrate did not commit any material misdirection in imposing
the 15 years minimum sentence.
Equally true is that the sentence
imposed is not shockingly inappropriate in that there is no striking
disparity between what the
Magistrate imposed and the sentence that
this appellate Court would have imposed. In my view, the sentence
meets the gravity of
the offence; has deterrent effect; it takes care
of the interest of the society and caters for some prospects of
rehabilitation
for the appellant. Therefore, it should not be upset.
This appeal should fail.
Order:
1. The appeal is dismissed and the
sentence of 15 years imprisonment is confirmed.
Phatshoane J
I concur:
Tlaletsi AJP
On behalf of the Appellant : Adv
V.Z. Nel
Instructed by Kimberley Justice
Centre
On behalf of the Respondent : Adv
K. F. Ilanga
Instructed by : Director of Public
Prosecutions