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[2011] ZANCHC 16
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S v Changisa (K/S 15/2011) [2011] ZANCHC 16 (20 September 2011)
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGH COURT,
KIMBERLY)
Case No: K/S 15/2011
Heard on: 29-08-2011
Delivered on: 20-09-2011
STATE
V
JOHANNA CHANGISA
JUDGMENT
PHATSHOANE
J
The
accused, Ms Johanna Changisa, a 24 year old woman is arraigned
before me on the charge of murder read with the provisions
of s 51
of
Criminal Law Amendment Act, 105 of 1997
. The state alleges that
on or about 27 November 2010, at or near Hartswater, in the district
of Hartswater, she unlawfully and
intentionally killed Nthesang
Petoro Pitso, a male person estimated to be 30 years of age in the
autopsy report.
The
accused pleaded not guilty to the charge and in amplifying her plea,
Mr Cloete, who appeared on her behalf submitted that
she acted in
self-defence. The key to the photos and the autopsy report were
handed in as evidence by consent and marked annexures
“A”
and “B,” respectively. The following admissions were
recorded formally in terms of
s 220
of the Criminal Procedure Act,
51 of 1977(the CPA):
The
identity of the deceased as depicted in the photos appearing in
annexure “A” (the key to the photos).
The
contents of the medico-legal autopsy report as compiled by Dr Adin
Don Surtie.
That
the body examined by Dr Surtie is that of the deceased.
That
the body of the deceased did not sustain any further injuries from
the time it was removed from the scene until the autopsy
was
performed on it.
Ntshedisang
Julia Changisa, the accused’s niece, Jeremiah Peiye Changisa,
the accused’s cousin, and Kedibone Valerie
Lucas were in the
company of the accused and a group of friends during the early hours
of the morning of 27 November 2010. The
deceased, a man unknown to
the mentioned three state witnesses, approached them from the front
and walked passed. From here the
witnesses gave divergent accounts
of the events. Nonetheless what is germane is that while this group
walked further the accused
dropped off. She was later found
approximately 30 meters behind the group with the deceased whose
T-shirt was blood stained.
The deceased was on his knees while the
accused held a knife in her hand.
Smalberger
JA enunciated the approach as follows in
S
v Francis 1991(1)SACR 198 (A)
at
203h-j
“
It
was therefore incumbent upon the trial Court to properly evaluate the
evidence of D in the light of its alleged deficiencies,
and the
criticisms voiced against it, in order to determine whether it
measured up to the standard required for its acceptability.
If it did
not measure up to such standard, it would not avail the State in the
discharge of the onus of proof upon it that accused
No 5 failed to
testify. While an accused person's failure to testify may in
appropriate circumstances be a factor in deciding whether
his guilt
has been proved beyond all reasonable doubt, this is only so where
the State has prima facie discharged the onus upon
it. A failure to
testify will not remedy a deficiency in the State case such as the
absence of apparently credible implication
of the accused (S v Masia
1962 (2) SA 541
(A) at 546E-F).”
At
the close of the state’s case the accused exercised her right
to remain silent and has therefore not rebutted the state’s
case. The principle applicable in this kind of situation has been
set out in
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC)
.
The
Constitutional Court had to deal with the question whether the
applicant's contention that his right under s 35(3)(h) of the
Constitution 'to remain silent and not to testify during the
proceedings' was infringed by the SCA. It was contended amongst
others that the SCA improperly relied on the applicant's failure to
give evidence to conclude that there had been proof beyond
reasonable doubt. At p9 para 24 Langa DP lays down the principle
with regard to right to remain silent as follows:
“
The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to remain
silent
and may not be compelled to make any confession or admission that
could be used in evidence against that person. It arises
again at the
trial stage when an accused has the right to be presumed innocent, to
remain silent, and not to testify during the
proceedings. The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences attaching
to a decision to remain
silent during the trial. If there is evidence calling for an answer,
and an accused person chooses to remain
silent in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the absence of
an explanation to prove the guilt of
the accused. Whether such a conclusion is justified will depend on
the weight of the evidence.
What is stated above is consistent with
the remarks of Madala J, writing for the Court, in Osman and Another
v Attorney-General,
Transvaal, when he said the following:
'Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case,
an accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution
of its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution's
case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial
system of criminal
justice.'
It
must without more ado be said that Ntshedisang and Jeremiah did not
witness the murder. Kedibone on the other hand said she
saw the
accused stabbing the deceased. It is axiomatic therefore that this
was not a case of a murder mystery. Through the accused’s
admission that she acted in self-defence it is common cause that she
killed the deceased. What remains for determination is the
crisp
issue of whether the killing was unlawful. The chief autopsy
findings made by Dr Surtie reflects that the deceased had
a fatal
20mm incision on the left anterior chest 30mm from midline and 30mm
below the sterna notch entering the chest through
the cartilage of
the 2
nd
rib with incision of the lung and aorta. He also
had fatal 14 mm incision on the left anterior chest from midline and
90 mm below
the sterna notch and tract running inferiorly and
entering the chest through the 4
th
intercostals space
with incision of the heart.
Ntshedisang
and Jeremiah contradicted each other but not to a material degree on
the question whether at the time that the deceased
was approaching
them they were walking in one or two groups. According to
Ntshedisang the group was never divided. She says after
approximately 30 meters she turned back to check on the accused. She
found the accused and the deceased positioned in the manner
already
described. She called his brother, Jeremiah, who on arrival took the
knife away from the accused and said:
“Look at what s..t
you have done
”, referring to the accused. Jeremiah states
that they were walking in two groups. His sister, Ntshedisang, who
was in the
group behind them, in the company of other women, came
rushing to him shouting that the accused has stabbed the deceased.
Kedibone
on the other hand alleges that when the deceased was approaching the
group she heard the accused saying that she wanted
to stab the
deceased. She does not know if the other members of the group heard
this utterance. She advised the accused not
to stab the deceased as
he had done nothing to her. This evidence remains uncontroverted.
Kedibone’s
testimony contradicts that of Ntshedisang and Jeremiah in the
following respects: She testified that the accused
followed the
deceased. Approximately 5 meters away from the group the accused
took out a knife in her left pocket and stabbed
the deceased on his
back. When confronted in cross-examination on the alleged spot where
the deceased was stabbed she at first
said it was around the left
shoulder and later changed to say that she did not know precisely
where the injuries were inflicted.
Her assertion concerning the
location of the stab wounds is at odds with the injuries depicted
on the photos and contradicts
the contents of the medico-legal
autopsy report which concludes that the cause of death was
“multiple” stab wounds
to the chest. Kedibone’s
evidence is not entirely satisfactory on this aspect. Quite
understandably Kedibone is an unsophisticated
young woman who did
not attend school and observed the events in poor light.
Mr
Louw, counsel for the state, submitted that the state did not prove
its case beyond a reasonable doubt. He contended that the
state did
not lead evidence to controvert the accused’s statement from
the bar that she acted in self-defence. Consequently,
he submitted,
the state cannot request that the accused be found guilty on the
charge. Mr Cloete, the defence counsel, not surprisingly,
align
himself with the state on this score. He contended that in the
circumstances of this case the accused ought to be acquitted.
Mr
Louw referred me to
S v Thebus and another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC)
at 348 para 57 where the following dicta appears:
“
In
our constitutional setting, pre-trial silence of an accused person
can never warrant the drawing of an inference of guilt. This
rule is
of common-law origin. In R v Mashelele and Another, Tindall JA,
relying on the English decision of R v Leckey formulated
the rule
thus:
'(I)f
the silence of the accused could be used as tending to prove his
guilt, it is obvious that innocent persons might be in
great peril;
for an innocent person might well, either from excessive caution or
for some other reason, decline to say anything
when cautioned. And I
may add that an accused person is often advised by his legal advisers
to reserve his defence at the preparatory
examination. It would,
also, in my opinion, have been a misdirection to say that the silence
of the accused was a factor which
tended to show that their
explanation at the trial was concocted.'
The
quoted passage in
S v Thebus
supra deals with the
pre-trial silence of an accused person and not with his silence at
the trial stage where a prima facie case
based on common cause facts
had been made out against him or her. After all has been said and
done, save that the accused intimates
that she killed in
self-defence, there is no explanation from her in evidence post the
closure of the state’s case on what
gave rise to the untimely
demise of the deceased or the manner in which the defensive act was
carried out to ward-off the attack.
Consequently I drew counsel’s
attention to what the Court decided in
S v Manona
2001 (1)
SACR 426
(Tk)
. In that case the court dealt with an
application for the discharge of the accused in terms of s174 of the
CPA. In my view the
principle enunciated in this decision is
apposite. Kruger AJ who was confronted with an almost similar
situation made the following
remarks:
“
An
assault and the killing of a human being is an action which is prima
facie unlawful. Once it becomes common cause that the accused
has
assaulted or killed the deceased or the victim in self-defence, an
evidential burden is placed on the accused to rebut the
prima facie
presumption of unlawfulness. In such cases a discharge under s 174
cannot be granted.
I
am alive to the fact that the evidential burden on the accused can be
discharged by reference to the version of the State witnesses
–
see S v Ostilly and Others
1977 (2) SA 104
(D) at 107D - E; S v
Heller and Another (2)
1964 (1) SA 524
(W) at 541.
In
this case the State did not have a version at all of how the killing
occurred save that the killing had occurred. Therefore it
would be a
simple matter for the accused to adduce evidence setting out his
self-defence. The accused would be entitled to an acquittal
if there
is a reasonable possibility that he acted in self-defence. See R v
Patel (supra at 124A).
In
the circumstances therefore, the accused having admitted and it being
common cause that he killed the deceased there is an evidential
burden on the accused to place evidence before the court showing
circumstances of private defence. Thus an application under s
174
cannot be allowed.”
In
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (2) SACR 1
(CC)
at 57
para 144 Chaskalson P states:
“
The
rights to life and dignity are the most important of all human
rights, and the source of all other personal rights in Chapter
3. By
committing ourselves to a society founded on the recognition of human
rights we are required to value these two rights above
all others. “
At
para 138 in relation to the ground of justification raised the
learned President of the Constitutional Court proceeds:
“
Self-defence
is recognised by all legal systems. Where a choice has to be made
between the lives of two or more people, the life
of the innocent is
given preference over the life of the aggressor. This is consistent
with s 33(1). To deny the innocent person
the right to act in
self-defence would deny to that individual his or her right to life.
The same is true where lethal force is
used against a hostage taker
who threatens the life of the hostage. It is permissible to kill the
hostage taker to save the life
of the innocent hostage. But only if
the hostage is in real danger.
The
law solves problems such as these through the doctrine of
proportionality, balancing the rights of the aggressor against the
rights of the victim, and favouring the life or lives of innocents
over the life or lives of the guilty. But there are strict limits
to
the taking of life, even in the circumstances that have been
described, and the law insists upon these limits being adhered
to”
.
Mr
Louw maintained that regardless of how inadequate the accused’s
explanation is the state should still prove its case
beyond a
reasonable doubt and had failed to discharge its onus. This is
precisely where Mr Louw’s contention is fallacious.
As already
pointed out there is no version emanating from the accused. In
Narotam v Madhav and Another
1965 (4) SA 85
(W)
at
88D-89A Colman J had this to say:
“
The
rule laid down in the later cases, indeed, goes further than to
require the Court to consider those portions of the evidence
which
qualify or explain the adverse admission relied upon by the adversary
of the person who gave the evidence. Even those parts
of the evidence
which are unrelated to that admission must be considered. It would
seem, therefore, that in this situation, a party
may enjoy the
benefit of a self-serving statement which he would not have been
allowed himself to place before the Court.
It
was pointed out, however, that the Court is not obliged to give equal
weight to every part of the statement. The credibility
of each
portion must be weighed, and, it was said by GREENBERG, J.A. in
Valachia's case, the favourable portion of the statement
must be
given such weight as, in the opinion of the Court, it deserves. This
guarded statement was elaborated (albeit cautiously)
by OGILVIE
THOMPSON, J.A., in Vather's case at p. 354, in these terms:
'.
. . although the rule of Valachia's case[1961 (1) SA 350
(AD)],requires that consideration must be given to the whole of the
earlier statement, it does not necessarily follow that any great
weight is to be assigned to those portions of the earlier statement
which are favourable to the person who made it. Where the earlier
statement is not made under oath it may be that, for obvious
reasons,
but little or even no weight is to be attached thereto . . . Where
the earlier statement is made under oath, and more
especially where
the deponent has been cross-examined, more reason may be said to
exist for attaching some weight to it'.
The
effect of the authorities, as I understand them, is this: Whether the
statement before the Court is a record of evidence at
an insolvency
interrogation or any other extra-judicial statement, the Court must
consider every part of the statement which bears,
directly or
indirectly, upon the issues in the trial in which it has been
produced. No part of that statement is to be disregarded
merely
because it is favourable to the person who made it. But the weight,
if any, to be given to a favourable part of the statement
must be
determined by the Court in the light of a number of factors. These
will include the probabilities, the extent to which
and the manner in
which the deponent was cross-examined, and his credibility, as far as
it can be judged from the written record
of what he said. Regard will
be had to the motives which are likely to have operated on the
deponent's mind at the time when he
made the statement, and to the
other relevant evidence in the trial at which the statement was
produced.
In
the present case there was no other evidence which dealt with the
issue sought to be resolved by the defendants' statements,
so that in
deciding what weight to give to the various portions thereof I shall
have to rely, almost entirely, upon what may broadly
be called the
internal indications. I shall also have to resolve some ambiguities
arising out of the manner in which questions
and answers were
framed.”
On
a commentary with regard s151 of the CPA which, in a nutshell,
provides that the accused may address Court and adduce evidence
the
following passage appears in
Hiemstra’s Criminal Procedure
by A Kruger at 22-13:
“
It
should be borne in mind that only when the state has presented prima
facie proof implicating the accused can an answer be expected.
Insufficient proof requires no answer (Erasmus v R
1945 OPD 50
at
74). Silence cannot be used to supplement the state’s case
where there is no evidence upon which a reasonable person would
convict.”
The
persistent Mr Louw referred me to the following three further cases
in support of his argument that a conviction is not sustainable:
In
R v Moleko
1955 (2) SA 401
(A)
at 403F-G the Court
held:
“
The
onus of negativing self-defence in a criminal case encumbers the
Crown (R v Ndhlovu,
1945 AD 369
at p. 381). On this proposition
counsel were in agreement and it was consequently common cause that
the learned trial Judge had
misdirected the jury in this regard.”
In
S v Ngomane
1979 (3) SA 859
(A)
at 863A-C Trollip JA
stated:
“
As
to ground (4) concerning self-defence. Here again, for the same
reasons, appellant's version that he acted in self-defence must
be
accepted. The question is, however, whether, on an objective
consideration of the situation, he acted reasonably and legitimately
in order to protect himself against the deceased (see, eg, S v
Motleleni
1976 (1) SA 403
(A)). The onus is, of course, on the State
to prove beyond reasonable doubt that he exceeded the legitimate
bounds of self-defence.
In ground (4) the Court a quo seems to have
put the onus on appellant to prove self-defence; if so, that approach
was incorrect,
for it was for the State to have negatived it. But, be
that as it may, I think that, although appellant acted in
self-defence,
the proved facts do negative it as a tenable defence.
They show that the appellant acted far too precipitately or used
excessive
force to effect his escape.”
In
S v Motleleni
1976 (1) SA 403
(A)
at 407C-D the Court
made the following concluding remarks:
“
It
must be remembered that where the question of self-defence is raised,
or is suggested by the evidence, the onus nevertheless
remains on the
State to prove beyond reasonable doubt that the accused acted
unlawfully, and that he realised or ought reasonably
to have realised
that he was exceeding the bounds of self-defence. See S. v. Ntuli,
[1975 (1) SA 429
(AD]), at p. 437.”
Mr
Cloete referred me to
S v Teixeira
1980 (3) SA 755
(A)
at 764E-F where the court pronounced:
“
It
is by no means clear what the Court meant by saying that it had been
conceded by appellant's counsel that the "purported
defence of
self-defence had not been established" (my italics). If the
Court a quo intended to say that appellant had not
discharged the
onus of proving his defence, and that that was the concession made by
his counsel, then counsel was in error in
making the concession and
the Court a quo misdirected itself. The onus was quite clearly on the
State to prove beyond any reasonable
doubt that appellant acted
unlawfully, ie that in the circumstances appellant's action in
killing the deceased was not justified.”
What
sets this matter before me strikingly apart from the case law
counsel referred me to is that in all of the cases the Court
had at
least the version of the accused before it. I align myself with the
views expressed by Willis J in
S v Dougherty
2003 (4) SA 229
(W)
at 243 para 39:
“
In
contemporary South Africa the test, although objective (and even
taking into account the qualifications, in particular the subjective
situation in which an accused person finds himself, expressed in
cases such as S v Motleleni, S v Goliath and S v Ntuli (supra)),
must be a high one. Section 11 of the Constitution and the spirit of
the decisions in S v Makwanyane (supra) and Ex parte Minister
of
Safety and Security: In re S v Walters (supra) point in this
direction.”
The
following dictum appears in
Mugwena & another v Minister
of Safety and Security
2006 (4) SA 150
(SCA)
at 157J - 158D:
'Self-defence,
which is treated in our law as a species of private defence, is
recognised by all legal systems. Given the inestimable
value that
attaches to human life, there are strict limits to the taking of
life, and the law insists upon these limits being adhered
to.
"Self-defence
takes place at the time of the threat to the victim's life, at the
moment of the emergency which gave rise to
the necessity and,
traditionally, under circumstances in which no less severe
alternative is readily available to the potential
victim….
The
test is an objective one. The question to be answered is whether a
reasonable person in the position of Constable Matumba would
have
considered that there was a real risk that death or serious injury
was imminent.'
In
S v Steyn
2010 (1) SACR 411
(SCA)
at 416 para18-19 the
Court fully set out the legal position as follows:
“
It
is indeed so that when an accused raises a plea of private defence,
the court's initial inquiry is to determine the lawfulness
or
otherwise of the accused's conduct and that, if found to be lawful,
an acquittal should follow.....
Every
case must be determined in the light of its own particular
circumstances and it is impossible to devise a precise test to
determine the legality or otherwise of the actions of a person who
relies upon private defence. However, there should be a reasonable
balance between the attack and the defensive act as 'one may not
shoot to kill another who attacks you with a flyswatter'. As Prof
J
Burchell has correctly explained
'.
. . modern legal systems do not insist upon strict proportionality
between the attack and defence, believing rather that the
proper
consideration is whether, taking all the factors into account, the
defender acted reasonably in the manner in which he defended
himself
or his property'.
Factors
relevant to the decision in this regard include the following (the
list is by no means exhaustive):
•
the
relationship between the parties;
•
their
respective ages, genders and physical strengths;
•
the
location of the incident;
•
the
nature, severity and persistence of the attack;
•
the
nature of any weapon used in the attack;
•
the
nature and severity of any injury or harm likely to be sustained in
the attack;
•
the
means available to avert the attack;
•
the
nature of the means used to offer defence;
•
the
nature and extent of the harm likely to be caused by the defence.”
The
killing of a fellow human being is prima facie unlawful. The
evidence of the state witnesses to the effect that the deceased
walked passed them without saying a word remains uncontroverted. The
accused decided to detach herself from the group evidently
for no
other reason than she intended to stab the deceased and did so,
according to Kedibone’s uncontroverted evidence.
It is common
course that she was found at the scene carrying a knife. Ntshedisang
testified that the deceased was on his knees
with both his hands
hanging downwards. This evidence cannot be brushed aside. In the
same breath there is no evidence that the
deceased was carrying any
weapon with him or posed any danger to the accused. These undisputed
and common cause facts militate
strongly against the terse statement
from the bar by the accused’s counsel that she acted in
self-defence.
I
am of the view that in the face of this unassailable evidence, the
concessions made by the state were clearly wrong. Concessions
wrongly made cannot bind a Court. On a conspectus of all issues I
am of the view that the state proved its case beyond a reasonable
doubt and that accused is guilty of murder with the direct intention
to kill regard being had to the nature and the situation
of the
fatal injuries.
I
make the following order.
Order:
The
accused, Johanna Changisa, is found guilty on the count of murder
with the direct intent to murder.
I
now proceed to deal with the sentence
______________________
SENTENCE
_______________________
Delivered: 19-10-2011
23.
The
state called Mr Rhodes Pitso, the deceased’s younger brother,
who testified that they are four siblings, two sisters and
two
brothers. Two of his other siblings passed away. His parents are
still alive. The deceased who had separated with his wife
was
residing at Bonita Park, Hartswater. He was engaged in casual or
temporary employment and would assist on home front in buying
groceries. He lamented the fact that the deceased’s untimely
death brought sadness in the family.
24.
Mr
Cloete, the defence counsel, submitted the following mitigating
circumstances from the bar: that the accused is 24 years old;
she
attended school up to standard 4 (grade 6) and has no dependants. He
argued that the accused did not plan to murder the deceased.
This
coupled with the fact that the accused is a first offender; is of a
youthful age and that she was under the influence of alcohol
constitutes a compelling and substantial circumstance, he contended.
Counsel urged that a term of 15 years imprisonment would be
excessive
in the circumstances of the case. He suggested that any term of
imprisonment imposed should have a portion thereof suspended.
25. In
reply, Mr Louw, for the state, advanced that a term of 15 years
imprisonment would be appropriate. He contended that it cannot
be
said that the murder was planned when one has regard to the evidence
of Kedibone who intimated that when the deceased was approaching
the
group he heard the accused saying she wanted to stab the deceased. He
argued that the evidence of planning is necessary before
a conclusion
could be reached that the offence was planned.
In
S v Raath
2009 (2) SACR 46
(C)
at 53 para 16 the Court held:
“
Planning
and premeditation have long been recognised as aggravating factors in
the case of murder. See S v Khiba
1993 (2) SACR 1
(A) at 4; and S v
Malgas
2001 (1) SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All SA
220)
at para 34. As Terblanche Guide to Sentencing in South Africa 2
ed states at 6.2.2, planned criminality is more reprehensible than
unplanned, impulsive acts. However, there must be evidence that the
murder was indeed premeditated or planned.
26. In
considering sentence the Court should have regard to the crime, the
offender, and the interest of the society and impose
a sentence which
would try to balance the nature of the offence and circumstances
under which the offence was committed, the character
of the offender,
his/her circumstances and the impact of the crime on the victim and
the community, its welfare and concern. See
S v Zinn
1969 (2)
SA 537
(A)
at 540G and
S v Banda and Others
1991 (2) SA
352
(B)
at 355A –C.
The
offence committed is no doubt very serious. The right to life is
fundamental and is protected in our Constitution and cannot
be
sacrificed at the altar of a flimsy and unfounded self-defence. To
this day it is hidden underground how the accused killed
the
deceased. The deceased, like any citizen in this country, deserved
to live. He was a stranger to a group of friends that
testified in
the proceedings and was killed for no reason. Within his limited
means he assisted his family. His untimely death
has left a lacuna
in their lives. In this case the interest of the society should be
more important than the interest of an individual
because society
must be protected against the likes of the accused for a reasonably
lengthy period.
In
S v Mabuza and others
2009 (2) SACR 435
(SCA)
at
443-444 para 23 Cachalia JA pronounced:
“
While
youthfulness is, in the case of juveniles who have attained the age
of 18, no longer per se a substantial and compelling factor
justifying a departure from the prescribed sentence, it often will
be, particularly when other factors are present. A court cannot,
therefore, lawfully discharge its sentencing function by disregarding
the youthfulness of an offender in deciding on an appropriate
sentence, especially when imposing a sentence of life imprisonment,
for in doing so it would deny the youthful offender the human
dignity
to be considered capable of redemption.”
A
first offender naturally should be treated with a modicum of
leniency. The accused is an adult whose action clearly rules out
immaturity. There was no evidence suggesting that the accused’s
alcohol consumption robbed her of her senses of appreciating
that
her deeds were despicable neither did she claim so. She also did not
show any contrition or appear to have been moved.
The
accused was charged with murder read with the provision of
s51(1)
of
the
Criminal Law Amendment Act 105 of 1997
. The SCA dealt with the
question of minimum sentencing in
S
v Malgas
2001 (1) SACR 469
(SCA)
at 481 para 25 as follows:
“
Courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that should
ordinarily and in the absence of weighty justification
be imposed for
the listed crimes in the specified circumstances. Unless there are,
and can be seen to be, truly convincing reasons
for a different
response, the crimes in question are therefore required to elicit a
severe, standardised and consistent response
from the courts. The
specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable
to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying
the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be
excluded…..”
The
aggravating circumstances present in this matter outweigh the
accused’s mitigating or personal circumstances, cumulatively
viewed. What the accused placed before me is nothing out of the
ordinary.
In
the circumstances the following sentence is imposed:
On
the charge of murder: The accused is sentenced to 14 years
imprisonment.
____________________________
MV PHATSHOANE
JUDGE
NORTHERN CAPE HIGH
COURT
On
behalf of the State
Adv
C Louw
Instructed
by
Director
of Public Prosecutions
On
behalf of the accused
Adv
J Cloete
Instructed
by
Legal
Aid Board