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[2011] ZAFSHC 118
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Radebe v S (A178/10, 45/2009) [2011] ZAFSHC 118 (28 July 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A178/10
Case No.: 45/2009
In
the appeal between:-
TSHOKOLO
DAVID RADEBE
….............................................................
Appellant
and
THE
STATE
….............................................................................................
Respondent
_____________________________________________________
CORAM:
MUSI,
JP
et
JORDAAN,
J
et
MURRAY,
AJ
_____________________________________________________
HEARD
ON:
29
NOVEMBER 2010
_____________________________________________________
JUDGMENT
BY:
MUSI,
JP
et
MURRAY,
AJ
_____________________________________________________
DELIVERED
ON:
28
JULY 2011
_____________________________________________________
JUDGMENT
_____________________________________________________
[1]
This is an appeal to the full bench of this division against the
sentences imposed on the appellant at the Bethlehem Circuit
Court on
21 August 2009.
[2] The appellant was
convicted on two counts:
2.1
count
1:
housebreaking
with intent to murder and murder and
2.2
count
2:
rape.
[3] On count 1 the
appellant was sentenced to life imprisonment, and on count 2 to 20
years’ imprisonment.
[4] On 21 August 2009 he
was granted leave to appeal to the full bench of this court against
the sentences only.
[5] The relevant
background facts are the following: the 9-year old rape victim (the
complainant) and her grandmother (the deceased)
were asleep in the
latter’s home when, around 2 a.m. on 1 January 2009, the
appellant kicked open the door with such force
that the doorframe was
cracked and the sliding bolt with a piece of wood still adhering to
it, broke out of the frame. He burst
into the room, threw a bottle at
the deceased, pulled her from the bed and demanded money. When she
could not pay, he pulled a
plastic bag over her head and throttled
and/or suffocated her. When she tried to escape through the window,
he pulled her back
into the room where she fought back so desperately
that there was blood everywhere: on the floor, on the plastic bag, on
the blankets,
on the wall, on the curtain, on the window sill and
even on the wall outside of the window, on the appellant’s
T-shirt, his
tackies, his jeans and his forehead, besides the
scratches on his neck. She finally died on the floor from what the
pathologist
described as swollen, fluid-filled lungs and an immensely
swollen brain due to asphyxiation and suffocation.
[6]
From her grandmother’s bed, the
“
very
small, petite, very thin”
9-year
old complainant had to watch and listen to her grandmother being
killed. When she screamed, the appellant put his hand over
her mouth
and ordered her to undress. He removed her panties, held her down
with such force that she suffered multiple abrasions
on both legs and
feet and raped her, both vaginally and anally. That she, too,
struggled fiercely, was evident from the fact that
some sections of
her hairpiece were found on the floor next to the bed and that the
appellant was found with a wound on his finger
where she told the
police she had bit him.
[7] She described the
pain the rape caused her. The doctor testified that she was still so
shocked and traumatised the next morning
that it took a long while
before she could even be examined. When she was, the doctor found
definite signs of vaginal penetration
which left various lacerations,
numerous abrasions, tearing, bleeding, and inflamed vaginal organs
and an absent hymen. She also
found obvious forceful anal penetration
with ejaculation which left a 1 cm tear between the anus and the
vagina, the significance
of which the doctor described as follows:
“
... it
was lacerated because he had to tear it open to get in.”
[8] It
is clear, therefore, that both crimes were committed with extreme
brutality. The court
a
quo
accordingly
imposed severe sentences.
[9] On
count 1 the trial court found the appellant guilty of
“
housebreaking
with intent to murder and murder”
.
Yet it found the form of intent to have been “at least
dolus
eventualis
”
and,
without making a finding of premeditation or preplanning, imposed a
sentence of life imprisonment.
[10] The question, then,
is whether the sentence was competent in view of the findings above.
[11] In order to
determine that, several issues need to be examined, namely:
11.1
whether the conviction of “housebreaking
with
intent
to
murder” is reconcilable with the finding of
dolus
eventualis
;
11.2 whether such
conviction necessarily implies premeditation or preplanning;
11.3 whether the trial
court was correct in not explicitly finding that the murder was
premeditated, and
11.4 whether it was
competent for the trial court to impose life imprisonment in the
absence of an explicit finding of direct intention
or preplanning or
premeditation.
[12]
The first question, then, is whether a finding of “housebreaking
with
intent to murder
and
murder” is reconcilable with a finding of
dolus
eventualis
.
Both counsel argued that, in the circumstances of the case, it was
not.
[13]
Intent can occur in three forms:
dolus
directus, dolus indirectus
and
dolus
eventualis
.
Intent in the form of
dolus
eventualis
or
‘legal intention’, which is present when the perpetrator
objectively foresees the possibility of his act causing
death and
persists regardless of the consequences, suffices to find someone
guilty of murder. See in this regard
S
v SHAIK AND OTHERS
1983
(4) SA 57
(A) at 62 A – B.
[14]
Dolus
directus
,
on the other hand, known as
“
intention
in its ordinary grammatical sense”
,
is present when the accused’s aim and object is to bring about
the unlawful consequence, even should the chance of its resulting
be
small. See Burchell:
Principles
of Criminal Law
,
3
rd
ed, at
251.
[15]
In
S
v DE BRUYN EN 'N ANDER
1968
(4) SA 498
(A) at 500, 502 – 503, 506 and 511 it was stressed
that legal intention to murder does not
per
se
connote
a lesser degree of blameworthiness than actual intention. It is
sufficient if the accused foresaw the possibility of the
existence of
the circumstance and was reckless as to whether it existed or not,
that is, if he had legal intention or
dolus
eventualis
.
[16]
In
casu
the
trial court found the appellant guilty of “
at
least
”
dolus
eventualis
,
which leaves the door open for an inference that the appellant could
have acted with a more direct form of intent than
dolus
eventualis
.
[17]
It is not always easy to pin-point where the one form of intent stops
and the next begins. It has been found, however, that
murder by
strangulation or, as
in
casu
,
suffocation, involves a deliberate act “designed to be
effective”, in other words, designed to cut off the airflow
to
the victim’s lungs and brain. And as aptly stated in
R
v LEWIS
1958
(3) SA 107
(A) at 109:
“
... in
order to be effective it had of necessity to be severe, continuous
and of some duration.”
[18]
Though in
R
v LEWIS
,
supra
,
the court made no explicit finding as to
dolus
directus
or
dolus
eventualis
despite
the reference to
“
a
deliberate act”,
it
found that the assailant had to have realised or at least recklessly
disregarded the probable consequences of his ‘deliberate’
act. It therefore also opened the way for an inference of “at
least”
dolus
eventualis
.
[19]
In
S
v OLIVIER
2007
(2) SACR 596
(C) the court with reference to the strangulation of a
6-year old boy with a telephone cord, did expressly find that
“
the only
reasonable inference that the court can draw is that [the accused]
had the direct intention [i.e. dolus directus] to kill
him.”
[20]
On the evidence
in
casu
it
would be difficult to find that the murder was not committed with
direct intent. On the medical evidence the deceased died of
suffocation due to a lack of oxygen resulting in the accumulation of
fluid in lungs and brain, leading to a massively swollen brain
and
asphyxiation. On the complainant’s version the appellant pulled
a white plastic bag over the deceased’s head and
‘strangled’
her. This is corroborated by a bloodstained white plastic bag found
at the murder scene. As stated in
R
v LEWIS
,
supra
,
for this to lead to the deceased’s death the act must have been
of some duration and must have been committed with determination.
[21]
It is common cause that, when the deceased tried to escape through
the window, the appellant pulled her back into the room.
This was
objectively confirmed by the blood on the curtains and the window
sill as well as on the outside wall, whereas the deceased
was found
next to the bed. The conclusion seems inescapable that the appellant
wanted the deceased dead: he did not stop until
she was dead, even
when he had the opportunity to do so. On that basis one could argue
that he acted with the same direct intention
that was found regarding
the strangulation in
S
v OLIVIER
,
supra
.
[22]
Although the appellant was convicted of housebreaking
with
intent to
murder,
the trial court made no express or explicit finding of premeditation
or preplanning, either. Mr. Hiemstra, for the State,
argued, however,
that, by imposing a sentence of life imprisonment, the trial court
appeared nonetheless to have regarded the murder
as preplanned or
premeditated.
[23]
Dolus
directus
and
premeditation/preplanning are not synonymous. While premeditation
obviously results in
dolus
directus
,
the converse is not true. That is clear from the case law.
[24]
What constitutes ‘premeditated or planned’ murder was
described as follows in the full bench appeal,
S
v RAATH
2009
(2) SACR 46
(C) at p. 53 par. [16]:
“
Clearly
the concept suggests a deliberate weighing-up of the proposed
criminal conduct as opposed to the commission of the crime
on the
spur of the moment or in unexpected circumstances. There is, however,
a broad continuum between the two poles of a murder
committed in the
heat of the moment and one which had been conceived and planned over
months or even years before its execution...
Only an examination of
all the circumstances surrounding any particular murder, including
not least the accused’s state of
mind, will allow one to arrive
at the conclusion as to whether a particular murder is ‘planned
or premeditated’. In
such an evaluation the period of time
between the accused forming the intent to commit the murder and
carrying out this intention
is obviously of cardinal importance but,
equally, does not at some arbitrary point, provide a ready-made
answer to the question
of whether the murder was ‘planned or
premeditated’.”
[25]
In
casu
no
such examination was explicitly done and no explicit finding of
premeditation was made. It is left to this court then to examine
the
circumstances to see if the failure to make such finding is correct.
To that end we examined applicable case law.
[26]
In
S
v RAATH
,
supra
,
the appellant shot and killed his wife. Despite
“
ample
evidence of the appellant’s violent behaviour towards the
deceased in the months preceding the shooting”
the
court found at p. 53 par. [16] that:
“
there was
nothing to suggest that he conceived an intention or plan to shoot or
kill the deceased before the night in question or,
for that matter,
before [his son] entered the house.”
[27]
The court found, furthermore, that:
“
the
accused was angered by the fact that his wife and children were not
at home and had not returned home by the early hours of
the morning
and when [his son] was sent home to find out whether everything was
in order, his anger seems to have turned into rage...
At worst for
the appellant it was then that he conceived the idea of killing the
deceased, using his firearm. Thereafter... he
retrieved his firearm
from the safe, violently pushed [his son] aside and, storming out of
the house, crossed the road and shot
the deceased just
as she
emerged from the neighbour’s house.”
[28]
The court found, too, that:
“
no more
than a matter of a few minutes had passed between the appellant’s
eruption into rage and the shooting of the deceased.
While it was
correct that from the moment he appeared to conceive the idea of
shooting his wife, the appellant brooked no opposition
and almost
immediately proceeded to carry out the murder, this did not, in the
court’s view, transform what appears to have
been a deadly, but
spur-of-the-moment act or acts of a man in an emotional rage, into a
planned and premeditated murder.”
[29] Although he shot his
wife point blank, with direct intent, therefore, the court did not
regard the murder as premeditated or
planned.
[30]
In order to determine whether the sentence of life imprisonment
in
casu
was
proportional to the crime, one therefore needs to distinguish between
premeditated or pre-planned murder and
dolus
directus
which
relates to the manner in which the murder was perpetrated.
[31]
The clearest such distinction appears in
S
v BALOYI
1994
(1) SACR 430
(A) at 709
,
where the court listed five aggravating factors in considering the
imposition of the death penalty.
The
first was that the murder was premeditated, which finding was based
on the fact that:
“
the
appellant [had] travelled a considerable distance to reach the hut in
which the deceased lived and arrived there with petrol
he had bought
to enable him to carry out his plan.”
The
second was that
“
he
[had] acted with dolus directus
”
which
finding was based on the fact that he deliberately set fire to the
hut in which he knew the deceased to be.
[32]
In
S
v ZONDI
1992
(2) SACR 706
(A)
at
709 the court based its finding that the murder was
“
not
only premeditated but carefully planned”
on the
fact that:
“
The
appellant used his own car to drive to the bottle store of the
deceased after having taken the precaution of removing its number
plates in order, obviously, to make identification more difficult.
The way in which he drove up to the bottle store and turned
his car
around so as to facilitate the quick ‘get-away’ after the
commission of the crime is but another facet of his
careful
planning... He returned to the car, armed himself with a pistol,
returned to the store and shot the deceased in the head.”
The
court found his point blank shooting of the deceased to be
“
clearly
dolus
directus
”
.
[33]
In
S
v KHIBA
1993
(2) SACR 1
(A)
at
p. 3 where the appellant shot the deceased in the chest, the Appeal
Court found that the shot was fired with
dolus
directus
and
not with
dolus
eventualis
as
the trial court found. The Appeal Court found that:
“
the
inference that the appellant fired at the upper part of the
deceased’s body at a range of a mere 5 metres with the direct
intention of killing him, is irresistible.”
[34]
In
S
v KHIBA
,
supra
,
the court found, in addition, a preconceived plan to attack the
deceased. The Appeal Court found that:
“
it seems
clear from the evidence, and particularly from appellant’s
confession that the three accused had planned this attack
on the
deceased and his wife carefully. The plan seems to have been to
waylay the deceased outside his house while he was about
his farming
activities and to kill him so that they could plunder his home with
comparative ease. To this end they approached the
farmhouse on a
Saturday evening. A suitable opportunity for a successful attack on
the deceased, however, did not present itself.
And so it came about
that they returned to the scene early on the Sunday morning. While
the deceased was waiting alone at the paddock
gate one of his
assailants must have come up quietly from behind and inflicted a
wound on his back with a panga. As he swung around,
to face his
attacker another assailant stabbed him in the chest with a pitchfork.
Appellant then shot him in the chest.”
The
shooting was found to be with direct intent.
[35]
In
S
v OLIVIER
,
supra
,
at 611 C – D, par. [41], too, a distinction was made between
premeditated murder and
dolus
directus
.
On the evidence the appellant saw the victim’s family on the
beach the previous day and greeted the victim, then followed
them
home. While his 6-year old victim was playing outside his own home,
the appellant accosted and lured him away, sexually assaulted
him,
and on his own version murdered him to prevent identification and
possible testifying against him. Based on that evidence,
the court
found the murder to have been premeditated. The court also made a
separate finding regarding the strangulation with a
telephone cord,
namely that:
“
from the
manner in which it had been carried out, the only reasonable
inference was that the accused had had direct intention to
kill”.
[36]
In
S
v MBANYARU AND ANOTHER
2009
(1) SACR 631
(C)
a
distinction was also made between direct intention to kill and
preplanning or premeditation. The court found that the close range
at
which the shots were fired at the deceased shows that direct
intention to kill was present. From the fact that while the deceased
was waiting for his workmen to arrive, the appellant appeared and
without saying a word, shot the deceased and then ran away and
the
fact that no motive was advanced for the murder the court found that:
“
the only
reasonable inference I can draw is that the murder was planned or
premeditated as envisaged in section 51(1) of the Act.”
[37]
Also in
S
v FRANCIS
1999
(1) SACR 650
(SCA)
at
p. 662 par. [29] the court in analysing the evidence to ascertain
whether there was premeditation, found a clear and consistent
pattern
emerging. It found that towards the end of 1994 the appellant bought
a pistol and made a practice of carrying it with him.
“
There
could be no mistake about his undisputed threats that he was going to
find (the appellant) and (the deceased) dead in the
room. On the
night of the shooting he entered the home with the loaded pistol. In
firing the fatal shot at the deceased he merely
fulfilled ‘the
whole design that he had been threatening for some time’.”
The murder was therefore
found to be premeditated.
[38]
As for the nature of the appellant’s intent, the Appeal Court
found at p. 662, par. [29] and [30] that the appellant
should have
been convicted on the basis of
dolus
directus
because:
“
when he
fired the fatal shot, he held the pistol with two hands and the
trajectory of the bullet was consistent with the typical
execution
shot.”
[39]
In view of the cases cited above, it is apparent that in order for
the murder to be found to be premeditated or planned, the
court has
to examine all circumstances, including the accused’s state of
mind. In doing so the court has to keep in mind
that the concept of
premeditation or planning suggests a deliberate weighing up of the
proposed criminal conduct, as opposed to
the commission of a crime on
the spur of a moment. The period elapsing between the accused forming
the intention to kill, and carrying
out that intention, is of
cardinal importance as stated in
S
v RAATH
2009
(2) SACR 46
(C).
[40]
In
casu
,
there is no evidence of premeditation or preplanning, however,
whether direct or circumstantial, as Mr. Hiemstra correctly conceded.
[41]
There is no evidence that the appellant came prepared to murder the
deceased or brought along the murder weapon, a white plastic
bag
“
in
which flour is kept”
,
or any other weapon.
[42] There is no evidence
of any special arrangements or special preparations or precautions or
plans to enable the appellant to
execute the murder.
[43]
There is no evidence, either, that he had held a grudge against the
deceased or had threatened her prior to the attack. The
mere fact
that he kicked open the door during the night certainly does not
prove that at that stage he had already planned to kill
the deceased.
Which leads one to question the correctness of the finding of
“housebreaking
with
intent
to
murder
”
rather
than, for instance, “housebreaking with intent to commit
robbery” although this would be purely academic in view
of the
fact that permission to appeal was granted regarding the sentences
only.
[44] His motive to kill
the deceased appears to have been money, the recovery of which forms
a recurring theme in the complainant’s
evidence; the
appellant’s brother’s evidence; the appellant’s
confession and the appellant’s testimony.
On his own version,
corroborated by the complainant’s evidence, the deceased’s
refusal to give him money triggered
the fatal attack:
“
toe word
my hart seer en ek het vir haar geklap...”
[45]
There appears to have elapsed no or minimal time between his getting
angry and his murderous attack on the deceased. The murder
in
casu
therefore
seems to be one committed on the spur of the moment, like the one in
S
v RAATH
,
supra
.
The circumstances appear to preclude premeditation and preplanning
and in our opinion the trial court acted correctly in not making
an
explicit finding of preplanned or premeditated murder.
[46]
The next question, then, is whether it was competent to impose the
sentence of life imprisonment in the absence of premeditation
or
preplanning. Section 51(1) of the Criminal Law Amendment Act (“the
Act”) 105 of 1997, as amended, as read with Part
I of Schedule
2 thereto requires for the prescribed minimum sentence of life
imprisonment to be applicable in a murder case, not
merely
dolus
directus
,
but that the murder must have been
“
planned”
or
“
pre-meditated”
.
[47] Had the appellant
been convicted of premeditated murder, the provisions of section
51(1) of the Act read with Part I of Schedule
2 thereto and therefore
the prescribed minimum sentence of life imprisonment would have been
applicable. Since premeditation was
not proved, section 51(1) does
not apply.
[48] The murder therefore
falls under Part II of Schedule 2, and since the accused was a first
offender, the trial court was obliged
to impose a minimum sentence of
15 years’ imprisonment unless it found substantial and
compelling circumstances to be present,
which it did not.
[49] The second question,
then, is whether it was competent for the trial court to impose life
imprisonment despite the prescribed
minimum of 15 years being
applicable.
[50]
One has to bear in mind that the provisions of Act 105 of 1997
prescribes a minimum and not a maximum sentence, and we agree
with
Bozalek J in
S
v RAATH
,
supra
,
at p. 54, par. [20] that:
“
it is
thus open to the court, in appropriate circumstances, to impose a
heavier sentence, including life imprisonment, even though,
prima
facie, [the appellant] qualifies for a lesser minimum sentence.”
[51]
Clear authority for the approach adopted by the trial court in
imposing the sentence of life imprisonment is found in
S
v KHOZA AND OTHERS
2010
(2) SACR 207
(SCA) at p. 88. In the latter case, the appellants had
been convicted on counts of robbery with aggravating circumstances in
a
cash-in-transit robbery. As first offenders, since their conviction
fell within the purview of Part II of Schedule 2 of the Act,
15 years
imprisonment was the applicable prescribed minimum sentence. The
trial court had found no substantial and compelling circumstances
that would justify the imposition of a lesser sentence. It found, on
the contrary, that such prescribed minimum sentence would
be too
lenient and imposed sentences ranging from 21 years to 23 years
imprisonment. On appeal, the Supreme Court of Appeal confirmed
the
sentences on the basis that they were commensurate with the
seriousness of the offences, the circumstances of the appellants
and
the interests of society.
[52] It would seem to us
that it would have made no sense for the trial court to have first
engaged in the enquiry of whether there
were substantial and
compelling circumstances that would justify the imposition of a
lesser sentence than the prescribed minimum
sentence of 15 years
imprisonment, when it was of the firm view that the imposition of the
latter sentence would be too lenient.
That would, in fact, serve no
purpose and would be absurd. The cardinal question on appeal is
whether the sentence of life imprisonment
imposed on count 1 was
shockingly inappropriate, thus entitling this court to interfere
therewith. This calls for a consideration
of both the mitigating and
aggravating circumstances in the matter.
[53] The following
mitigating factors were recorded:
53.1
that the appellant was 21 years of age at the time of commission of
the crimes;
53.2 that he had only
passed std. 6;
53.3 that he had no
dependents;
53.4 that he was a
contract worker;
53.5 that he was a first
offender;
53.6 that he had spent
nearly seven months in custody whilst awaiting trial;
53.7 that he had consumed
alcohol before committing the crimes; and
53.8
that he was found to have committed the murder on the basis of at
least
dolus
eventualis
.
Of all
these factors those that call for a full assessment are the
applicant’s age and level of education, his status as a
first
offender, the fact that he had consumed alcohol and the finding that
the murder was committed on the basis of
dolus
eventualis
.
We deal hereunder with each of these factors.
The appellant’s
age and level of education
[54] No evidence was
presented that would have enabled the trial court to assess the
effect of either the appellant’s age
or his level of education
on his culpability or his moral blameworthiness.
[55]
In
S
v MABUZA AND OTHERS
2009
(2) SACR 435
(SCA)
at
par. [23] Cachalia JA found that although youthfulness can in certain
circumstances constitute substantial and compelling circumstances,
the legislature:
“
...
in
requiring a sentencing court to depart from the prescribed sentence
in respect of offenders who have attained the age of 18 only
if
substantial and compelling circumstances justify this departure...
has clearly intended that youthfulness no longer be regarded
as per
se a mitigating factor.”
[56] In
S
v MATYITYI
695/09
[2010] ZASCA 127
at par.
[14]
it was said that:
“
a person
of 20 years or more must show by acceptable evidence that he was
immature to such an extent that his immaturity can operate
as a
mitigating factor.”
[57]
In
casu
no
such evidence was presented and the appellant’s age can at best
for him only serve as a neutral factor.
Status as a first
offender
[58] The appellant’s
status as a first offender has already been catered for in the
prescribed minimum sentence of 15 years
(instead of 20 for a second
offender, etc) and therefore can be disregarded as a further
mitigating factor regarding the murder.
[59] Only two of the
other factors listed by the court
a
quo
in
casu
could
potentially be of any real significance in mitigation, namely, the
finding of at least
dolus
eventualis
and
the appellant’s alcohol consumption before committing the
crimes.
Appellant’s
alcohol consumption
[60]
In
casu
no
reliable evidence was introduced as to the extent of the appellant’s
alcohol consumption or on how it affected his conduct.
His brother
testified that they had spent the day together and had
“
had
some drinks”
at
a tavern. Then he averred that by the time he left, the
appellant
“couldn’t have been under the influence because he only
had one beer at that stage”.
[61] The appellant
himself offered various versions of his drinking: at first he alleged
that he and some other people had bought
and shared a case of beer
and later that he had brought and drank four 750 ml beers. What is
important, however, is that on his
own version he
“
was
drunk”
“
but
not that drunk”
.
His conduct and actions during the murder and the rape certainly show
that his faculties were not substantially impaired.
[62]
In the absence of any reliable evidence as to the amount of alcohol
consumed, or as to how it affected the appellant’s
actions and
his culpability, therefore, no great weight could be attached to that
factor.
The
finding of at least
dolus
eventualis
[63]
The only other potential mitigating factor of any real consequence as
far as the murder is concerned, therefore, seems to be
the form of
intent found to have been at least
dolus
eventualis
.
In most instances, such as in the full bench decision in
S
v BROPHY AND ANOTHER
2007
(2) SACR 56
(W) at [13], a finding of
dolus
eventualis
was
explicitly identified as a mitigating factor on which to base, in
combination with such ordinary factors as youthfulness and
being a
first offender, a finding that substantial and compelling
circumstances existed to justify the imposition of a lesser sentence
than the prescribed minimum of life imprisonment.
[64] Each case has to be
decided on its own merits. However, as set out above, we are of the
opinion that in the circumstances of
this case appellant acted with
direct intent.
[65] There are therefore,
in our view, no significant mitigating factors in this case. The
aggravating factors, on the contrary,
are significant and severe.
[66] In sentencing, the
trial court considered the following aggravating factors:
[67]
That the appellant had entered the deceased, a vulnerable middle-aged
woman’s house which was supposed to be her safe
haven by
violently kicking in the door;
[68]
That the brutal attack happened in the middle of the night when the
victim was asleep and at her most vulnerable;
[69]
That the appellant demanded a negligible amount of money apparently
to pay his liquor account and when the deceased could not
provide the
money, killed her;
[70]
That the appellant never showed any remorse: See in that regard the
discussion of the ‘chasm’ between regret and
remorse in
S
v MATYITYI
,
supra
,
at par. [13].
In
casu
,
the appellant showed neither one;
[71]
That the murder left the deceased’s daughter and granddaughter
motherless.
[72]
We agree with Mr. Hiemstra that the following aggravating factors are
extremely serious:
[73]
That the appellant acted in the early hours of the night when his
victims were at their most vulnerable. In
S
v KHIBA
,
supra
,
at p. 4 Eksteen JA, as he then was, listed numerous cases, such as
S
v KHUNDULU AND ANOTHER
1991
(1) SACR 470
(A);
S
v MAKIE
1991
(2) SACR 139
(A);
S
v NGCOBO
1992
(1) SACR 544
(A);
S
v JORDAAN
1992
(2) SACR 498
(A) and
S
v MOFOKENG
1992
(2) SACR 710
(A) in which death sentences were confirmed on appeal:
“
reflecting
the gravity with which [the Appeal Court] regards murderous attacks
on victims in their own homes”
;
[74]
That the deceased
in
casu
was
killed for a negligible amount of money: if the two brothers are to
be believed, for a mere R50 to R150. For that, as Mr Hiemstra
submitted, the appellant murdered the grandmother deliberately and
determinedly in front of her grandchild in what was evidently
a
terrible struggle, which in itself must have been extremely traumatic
for the child, and the appellant immediately followed up
the murder
with the rape of a tiny sexually immature 9-year old child who had
just experienced the extreme agony and trauma of
witnessing her
grandmother’s murder;
[75]
That the appellant chose to strangle and/or suffocate the deceased,
which as Mr. Hiemstra submitted, is
“
always
a particularly ‘intimate’”
form
of murder in which the murderer can literally feel the life being
extinguished beneath his hands in a slow, deliberate process
during
which he needs to keep the deceased under continuous restraint, the
result of which was said in
R
v LEWIS
1958
(3) SA 107
(A) at 109 E must be clear to
“
even
the most dull-witted individual”;
[76]
That the appellant showed no remorse: in fact, he kept changing his
version from a confession to at least having hit the deceased
and
slept with the child, to a total denial of having done anything at
all. As found in
S
v LANGA
2010
(2) SACR 289
(KZP) at p. 310 there is no indication that the
appellant
in
casu
is
a good candidate for rehabilitation.
[77]
The enactment of the minimum sentence provisions certainly did not
strip the superior courts of their inherent jurisdiction
to impose
life imprisonment in appropriate circumstances. In imposing the
ultimate sentence for the murder the trial court started
out from the
prescribed minimum sentence of 15 years’ imprisonment, but
found that the circumstances of this case called
for the imposition
of
“
the
heaviest sentence this Court is entitled to impose”
.
The trial court described as an ‘anomaly’ in the Act ...
“
dat die
Wetgewer ‘n swaarder vonnis voorskryf in hierdie saak ten
opsigte van die verkragting as in die geval van die moord.
”
[78]
The trial court further commented as follows:
“
Hierdie
Hof is egter van mening dat as dit kom by straftoemeting dit in
verhouding moet wees met die erns van die misdryf en die
heersende
omstandighede wat ter sprake is. Om die lewe te neem van ‘n
medemens ag ons in hierdie huidige saak baie ernstiger
as die
verkragting wat hier ter sprake is.”
[79]
We are of the opinion that in the circumstances of this case life
imprisonment for the murder is not excessive or disproportionately
harsh.
[80] Now the appellant
has also challenged the sentence of 20 years imprisonment on count 2
(rape). However, Mr. Reyneke, who argued
the appeal on his behalf,
did not seriously challenge it and was content to suggest that 18
years imprisonment would be more appropriate,
which is not a
sufficient ground to justify interference with the sentence. On the
other hand, Mr. Hiemstra, for the State, submitted
that the sentence
was appropriate and supported it. Both legal representatives
supported the finding of the trial court that there
were substantial
and compelling circumstances justifying the imposition of a lesser
sentence than the prescribed minimum sentence
of life imprisonment.
[81]
We do not, with respect, agree with the finding of the court
a
quo
that
there were indeed substantial and compelling circumstances justifying
a departure from the prescribed minimum sentence in this
case, but it
is unnecessary to elaborate, given that we are not at liberty to
increase such sentence in view of the fact that there
was no cross
appeal and the appellant has not been warned that it may be
increased. At any rate, a second life imprisonment would
have run
concurrently with the life imprisonment imposed on count 1 in much
the same way that the 20 years imprisonment will run
concurrently
with the life imprisonment imposed on count 1.
[82]
In the result, the appeal is dismissed and the sentences imposed by
the trial court are confirmed.
____________
H.M.
MUSI, JP
______________
H. MURRAY, AJ
I
concur.
_______________
A.F. JORDAAN, J
On
behalf of appellant: Mr. J.D. Reyneke
Instructed
by:
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv. J.H.S. Hiemstra SC
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp