S v Rasengani (008/04) [2006] ZASCA 67; 2006 (2) SACR 431 (SCA) (29 May 2006)

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[2006] ZASCA 67
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S v Rasengani (008/04) [2006] ZASCA 67; 2006 (2) SACR 431 (SCA) (29 May 2006)

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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
Case number 008/04
Reportable
In the matter between:
HANGWANI GARDINER RASENGANI
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: FARLAM, MTHIYANE JJA et MAYA AJA
HEARD
: 5 MAY 2006
DELIVERED
: 29 MAY 2006
SUMMARY:
Criminal
Procedure – prescribed minimum sentence – duty of trial judge to
call evidence on sentence where necessary.
Neutral
citation: This judgment may be referred to as
Rasengani v The
State
[2006] SCA 66 (RSA).
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
INTRODUCTION
[1] The appellant in this case was
arraigned before Hetisani J, sitting in the Thohoyandou High Court on
an indictment containing
six counts, namely one of murder, two of
attempted murder, one of pointing a firearm in contravention of s
39(1)(i) of the Arms and
Ammunition Act Act 75 of 1969, one of
possessing an unlicensed firearm in contravention of s 2, read with s
39(1)(h), of the Act
and one of possessing ammunition while not in
lawful possession of a firearm capable of firing that ammunition in
contravention of
s 36, read with s 39(1)(b), of the Act.
[2] He was convicted on all the
counts, save that relating to the possession of ammunition, and was
sentenced on 14 December 2000
to life imprisonment for the murder, 22
years imprisonment for the first attempted murder, 18 years
imprisonment for the second,
8 years imprisonment for pointing a
firearm and six years imprisonment for possessing an unlicensed
firearm. It was ordered that
all the determinate terms of
imprisonment were to run concurrently with the life sentence imposed
in respect of the murder.
[3] The appellant’s application for
leave to appeal against the convictions and sentences was refused by
the trial court. On application
to this Court the appellant’s
application for leave to appeal against the convictions was refused
but his application for leave
to appeal against the sentences imposed
upon him was granted.
FACTS
[4] It was common cause at the trial
that the accused had been involved in a romantic relationship with
the complainant on the first
attempted murder charge, Dr Engedzani
Paulina Khwanda. (In what follows I shall refer to her as ‘the
complainant’.) According
to the complainant the relationship
terminated at the end of February 1999. The appellant averred,
however, that the relationship
continued until the date on which the
incidents which gave rise to the various charges occurred, namely 13
July 1999.
[5] The complainant testified that
after her relationship with the appellant terminated she became
involved in a relationship with
the deceased, which commenced in
March 1999. According to the complainant the appellant was not
prepared to accept that their relationship
had come to an end. He
refused to move out of the complainant’s house (which she herself
appears only to have stayed in when not
on duty at the hospital where
she worked). He threatened on several occasions to commit suicide
unless their relationship resumed.
He was depressed to such an extent
that she prescribed Prozac for him on 21 June 1999 and thereafter
Valium on 1 July 1999. (She
could not remember doing so but when the
prescriptions she wrote out were put to her she admitted that they
were in her handwriting.)
[6] The appellant telephoned her on 12
July 1999, and told her that if she continued with her relationship
with the deceased that
his body was not bullet proof and that he, the
appellant, would shoot both of them at close range. That evening she
went to the deceased’s
house, where she was staying for the week.
The next morning, at 5 am she received a telephone call on her mobile
telephone from the
appellant but did not respond to it.
[7] At 6 am the deceased’s domestic
worker, Ms Tinyiko Annah Makamu, let the appellant into the
deceased’s house, after he had
requested entry so that he could
discuss a court case with the deceased, who was an attorney. Once
they were in the house the appellant
pointed a firearm at Ms Makamu’s
forehead and demanded to be shown the room where the deceased was
sleeping. (This incident led
to the charge of pointing a firearm.)
She took him to the room whereupon he opened the door and entered the
room. Immediately thereafter
he started shooting at the deceased, who
was still in bed. The complainant, who was lying on the side of the
bed furtherest away
from the appellant, went to the appellant and
pulled his hand back so that he could not continue firing at the
deceased. The deceased
fell down and then got up and walked outside.
The appellant escaped from the grip of the complainant and followed
the deceased into
the passage outside the room where he fired again
at the deceased. The complainant then went up to the appellant and
said to him,
‘now that you have killed Khathu [the deceased], why
can you not kill me too?’ The appellant replied that before he
could kill
her he wanted first to aim at her stomach, because she
might be carrying the deceased’s baby and he wanted to destroy the
foetus
before he killed her. He then loaded bullets into the firearm
and shot her at close range in her stomach. She fell down. The
appellant
then went over to where the deceased was lying and shot him
again. She got up and walked to the gate where she fell down again.
The
appellant came to her, took some bullets out of his jacket, put
them next to her head and said that he wanted to shoot her head so
that her parents would not be able to recognise her. He knelt down,
produced a knife and screwdriver and stabbed her in her back.
He then
stood up and kicked her all over her body. He told her that he was
going back to the house in order to cut off the deceased’s
genitals
to teach him a lesson and that he would then come back to her again.
When he entered the house she managed to stand up and
run away. She
collapsed at the nearby house of the witness, Mr Musia.
[8] Musia came out and covered her
with a blanket and then, because he could not get through to the
police on his house telephone,
he decided to go to the police base in
his motor vehicle so as to call them to the scene. As he was walking
towards his vehicle the
appellant arrived, with a firearm in his
hand, and said that he was looking, as he put it, for his naked wife.
Musia told him that
his wife had gone out of his yard through the
gate, whereupon the appellant left. Musia drove to the police base,
told them briefly
what had happened and then drove back to his house
followed by the police. When he got back to his house and had parked
his vehicle
he saw the appellant walking in front of his house. Musia
told the policeman in the police vehicle which had followed his car
that
the man walking in front of his house was the man who had been
looking for the complainant.
[9] The policeman, who was Inspector
Mabasa, asked Musia to follow him in the police vehicle. Mabasa went
after the appellant. Musia
did not see what happened but heard a shot
and when he arrived at the spot where Mabasa and the appellant were
he found the appellant
lying on the ground. He helped Mabasa to carry
the appellant to the police vehicle and Mabasa then drove away taking
the appellant
with him. After this Musia took the complainant to the
deceased’s house, from where she was taken to hospital.
[10] According to Mabasa, the
complainant on the second attempted murder charge, he accompanied
Musia from the police base to his
house. When they arrived there he
saw the appellant passing by in the street with a firearm in his
hand. On being told that the appellant
was the person who had been
involved in the earlier shooting incident, he told him to stop. The
appellant turned towards him and
pointed his firearm at him. Mabasa
hid behind a rock in the vicinity. The appellant fired a shot towards
him, which missed. The appellant
then said that he could not
surrender himself to a police officer and that he would rather shoot
himself. He then pointed his firearm
towards his armpit and shot
himself. He fell to the ground. Mabasa saw blood oozing from his
armpit. He took possession of the firearm
and on searching the
appellant found a screwdriver and a knife. The appellant was then
taken to hospital. In addition to the screwdriver
which Inspector
Mabasa found on the appellant another screwdriver was found in the
passage of the deceased’s house near the deceased’s
body.
[11] It appears from the report of the
post-mortem examination performed on the body of the deceased that in
addition to a gunshot
wound through his left eye into the left
hemicranium which caused his death there were also superficial
lacerations (puncture marks)
on the deceased’s right neck and left
shoulder and on both buttocks as well as in the left pubic area. Dr
Tshivhase, who performed
the post-mortem examination said that these
marks could have been caused by either the screwdriver found near the
deceased’s body
or the one found on the appellant by Inspector
Mabasa.
[12] Dr Tshivhase also testified
regarding the injuries received by the complainant. According to her
the complainant had a gunshot
wound in the abdomen which caused,
amongst other things, extensive damage to the bowel, liver and
spleen. The spleen was ruptured
and had to be removed. There was also
a laceration, caused by some sharp object, on the right side of her
neck. There was also what
the witness described as minor tissue
injury on the left side of the complainant’s face and some
superficial puncture marks on
her back.
[13] After the appellant was convicted
the complainant testified as to the effect the attack on her had had
on her life. She said
that before the incident she had wanted to
specialise in paediatrics but that this field of specialisation was
no longer open to
her because as a result of the removal of her
spleen her chances of getting infections of various kinds have been
substantially increased.
She said further that because of this she
was restricted from seeing most patients. She also described how,
when she sees patients
in out-patients’ department with injuries
similar to hers, she has flashbacks to her own experiences which
prevent her from functioning
as swiftly and efficiently as she should
in the circumstances. She also stated that because of the traumatic
experiences she underwent
she had been seeing a psychiatrist.
JUDGMENT OF THE COURT
A QUO
[14] In
his judgment on sentence the learned trial judge referred to
s 51
of
the
Criminal Law Amendment Act 105 of 1997
which provides in
subsections (1) and (3), read with
Part I
of Schedule 2, that a
person convicted of a murder which was planned or premeditated must
be sentenced to life imprisonment unless
the court is satisfied that
substantial and compelling circumstances exist which justify the
imposition of a lesser sentence. He
found that the murder of the
deceased was premeditated and stated that this was the reason that he
was obliged to impose a sentence
of life imprisonment on the
appellant in respect of count 1, the count of murder. He had earlier
stated that the appellant had committed
the offences in respect of
which he had been convicted ‘seemingly under very emotional
provocation’. He said, however, that ‘this
vital point was not
fully canvassed by the defence’ nor was it contradicted by the
State. Later the judge mentioned that he had
already alluded to the
fact that the appellant had ‘perhaps [been] under extreme emotional
provocation’ at the time of the commission
of these crimes and said
that ‘this factor would count very strongly in his favour but there
is no evidence before the court to
support it.’ In this regard
reference was made to the fact that the appellant had been seen by
four psychiatrists.
[15] The
learned judge also said that if the case had come before him before
1997, by which he clearly meant prior to the coming into
operation of
Act 105 of 1997, ‘the sentence to be imposed here today would be
far different from what it is’.
SUBMISSIONS
BY COUNSEL
[16] Counsel for the appellant
submitted that the trial judge court had misdirected himself in
imposing the sentence he did on count
1 because, having found that
the murder was premeditated, he failed to consider whether there were
substantial and compelling circumstances
present. It was accordingly
necessary, so counsel submitted, for this court on appeal to address
itself to the question which the
trial judge had failed to consider.
[17] Mr
Ntlakaza
, for the State
did not dispute this contention: he conceded the misdirection
contended for but submitted that this court should conclude
that no
substantial and compelling circumstances were present. He also
conceded that the sentences on the two counts of attempted
murder
(counts 2 and 3) and the count of pointing a firearm in contravention
of section 39(1)(i) of Act 75 of 1969 (count 4) were
excessive and
should be replaced by sentences which this court considered
appropriate. As regards the sentence imposed on count 4,
namely eight
years imprisonment, he pointed out that the maximum sentence provided
for by s 39(1)(i) is only six months imprisonment
so that the
sentence imposed by the trial court was 16 times more severe than the
maximum provided by the statute.
DISCUSSION
[18] The difficulty I have in regard
to the question as to whether substantial and compelling
circumstances were present is created
by the fact that, although it
appears that the appellant may well have behaved as he did because of
severe emotional stress (I do
not agree that it is appropriate to
call it emotional provocation) this matter was not fully canvassed in
evidence. We know from
the evidence that the appellant was unable to
accept that his relationship with the complainant had come to an end,
that he was being
treated for ‘depression and stress’, that he
had threatened to commit suicide and indeed tried to do so on the day
the crimes
were committed and that the complainant had prescribed
anti-depressants for him, one of which he was taking at the time when
the
crimes were committed. Although three of the four psychiatrists
who saw him did so pursuant to the provisions of
s 79
of the
Criminal
Procedure Act 51 of 1977
in order to ascertain whether he was fit to
stand trial and had criminal capacity when the alleged offences were
committed, it is
likely in my view that as a result of their
interviews with him they would be able to express opinions as to the
emotional stress
to which the appellant was subject when the crimes
were committed, how serious his depression was and whether, and, if
so, to what
extent it provided, at least in part, an explanation for
his behaviour, which, as appears from the summary given above was in
some
respects what I think may appropriately be described as bizarre.
[19] In my view the judge should, in
order to see to it that justice was done in this case, have called
one or more of the psychiatrists
who interviewed the appellant so as
to obtain information on the matters I have set out above.
That
he had the power to do so appears clearly from
s 274(1)
of Act 51 of
1977 which provides as follows:
‘
(1) A
court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself as to the proper sentence
to be
passed.’
[20] In this regard it is also helpful
to call to mind what Curlewis JA said in
R v Hepworth
1928 AD
265
at 277, viz:
‘
A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side,
and a
judge’s position in a criminal trial is not merely that of an
umpire to see that the rules of the game are observed by both
sides.
A judge is an administrator of justice, he is not merely a figure
head, he has not only to direct and control the proceedings
according
to recognised rules of procedure but to see that justice is done.’
[21] In the present case to close
one’s eyes to the fact that evidence on these matters was not led
might well lead to the imposition
of a sentence which is not in
accordance with justice. I say that because the factors I have listed
in para 18 above indicate, as
the trial judge himself was aware, that
emotional factors may have been present, which combined with the
appellant’s state of mental
health at the time, may have caused him
to behave in the way he did.
Even
if such factors were present, the crimes which he committed were very
serious and called for severe sentences but this does not
mean that
the sentence prescribed for premeditated murder should have been
imposed if substantial and compelling circumstances were
present.
Whether they were or not can only be decided once the further
evidence to which I have referred has been led. Similar
considerations
apply as regards the other crimes in respect of which
the appellant was convicted.
[22] In the circumstances I think that
in order for justice to be done in this matter it is necessary for
this court to set aside
the sentence imposed by the trial court, to
send the matter back for one or more of the psychiatrists who
examined the appellant
to testify on the matters mentioned above, for
the court in addition to hear such evidence on these matters as the
State and the
defence may wish to lead and for sentence to be passed
afresh on all the counts on which the appellant was convicted.
ORDER
[23] The following order is made:
The
sentences imposed on the appellant are set aside and the matter is
remitted to the trial court to deal with the matter as set
out in
para 22 of the judgment of this Court.
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
MTHIYANE JA
MAYA AJA