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[2011] ZAKZPHC 62
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Khumalo v S (2013 (1) SACR 96 (KZP)) [2011] ZAKZPHC 62; [2011] ZAKZPHC 8 (4 March 2011)
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case
No : AR 404/10
In
the matter between :
Sibongile
Khumalo
…....................................................................................
Appellant
and
The
State
…..............................................................................................Respondent
Judgment
Lopes J
[1] On the 14
th
May, 2009
the appellant pleaded guilty to, and was convicted of the charge of
murdering her husband Bheki Prince Khumalo. On the
19
th
May, 2009 she was sentenced to life imprisonment. This matter comes
before us by way of the grant, by Mogwera AJ, of an application
for
leave to appeal against sentence.
[2] When the appellant pleaded guilty,
a s112 statement was submitted to the Court by her legal
representative. In the statement
she recorded that she and the
deceased were married in 1996 and further stated :-
‘
3. The
deceased subjected me to abuse and financial neglect. As a result I
became depressed and desperate.
4. I approached my co-accused and
planned to have the deceased killed. We found a man who agreed to be
paid to kill the deceased.
5. As planned on 25 March 2009 the man
came to our home and shot my husband, who died as a result thereof.
6. I knew it was wrongful and unlawful
to kill the deceased at all material times thereto.
…’
[3] Counsel for the State made no
objection to the plea, and the appellant was convicted of murder. The
statement was sufficient
information upon which the Court was
entitled to convict the appellant. The appellant’s
representative then addressed the
Court in mitigation of sentence and
to indicate that substantial and compelling circumstances existed
entitling the learned Acting
Judge not to impose the minimum sentence
in terms of the
Criminal Law Amendment Act, 1997
. The learned Acting
Judge, however, was of the view that the appellant should testify as
to the circumstances in which she came
to want to bring about the
death of the deceased. She stressed to the appellant that evidence
under oath would carry more weight
than submissions from the bar by
her legal representative. The learned Acting Judge was, however,
careful to explain to the appellant
that she was under no compulsion
to give evidence. She also notified the appellant that she could call
witnesses to testify to
the abuse which she experienced at the hands
of the deceased.
[4] The learned Acting Judge was
clearly signalling to the appellant and her legal representative that
the evidence adduced in her
s112
statement and the submissions from
the bar were insufficient for her to find that substantial and
compelling circumstances existed
which would entitle her not to
impose the minimum sentence of life imprisonment. This is clear from
the record where the learned
Acting Judge stated :-
‘
The thing is
it is very important that you bring everything to light, things that
you are of the view will assist you to get sentence
other than life
imprisonment. If you do not do so, then it is going to be difficult
for me to find substantial and compelling circumstances
exist …
In fact I am supposed to just take what you are giving me and proceed
with what has been placed before me, but I
just think it is important
that I make you aware of everything what you are facing and how you
can avoid – convince us to
depart from what you are facing now.
Just making you aware that we are not playing here now. Your life is
hanging in the balance
…’
[5] It is clear from the aforegoing
that the learned Acting Judge :-
did not consider that in the
s 112
statement and submissions from the bar, a case for substantial and
compelling circumstances had been made out;
was concerned that the appellant
should receive proper advice as to the placing of acceptable
evidence before the Court; and
that justice would best be served if
the appellant was appraised of the need for her to lead further and
better evidence.
[6] The matter was then adjourned to
the next day to give the appellant and her legal representative time
to consider the above.
After having heard her testify, the learned
Acting Judge found that her evidence did not disclose on a balance of
probabilities
the existence of substantial and compelling
circumstances. In her judgment on sentence the learned Acting Judge
stated :-
‘
The only
thing that I can say is that claim of abuse is not very convincing,
because it is not really substantial …’
[7] In coming to this conclusion the
learned Acting Judge stated, perhaps somewhat loosely – ‘What
you have given us
is not different from what most women in this
country have to endure.’ In the context I understand her to
call for information
which would demonstrate why the circumstances of
the appellant were different from those of other abused women. The
learned Acting
Judge then highlighted the numerous alternatives
available to the appellant, such as divorcing the deceased, reporting
to relatives,
etc, none of which the appellant had pursued.
[8] Two aspects fall to be considered
:-
(a) Was the State bound by the
s112(2)
statement made by the appellant when she pleaded guilty?
(b) Was the learned Acting Judge
entitled to reject the submissions from the bar of the appellant’s
legal representative?
[9] In
S v Jansen
1999 (2) SACR
368
(C), Davis J considered the situation where an accused pleads
guilty and hands in a written statement in terms of
s112(2)
of the
Criminal Procedure Act, 1977
, setting out the facts upon which guilt
is admitted, and the State accepts that plea. Davis J stated that in
those circumstances
the plea so accepted constituted the essential
factual matrix on the basis of which a sentence must be imposed. He
stated that
the State may adduce evidence to fill in the framework
which was set by the plea, but that the essential factual matrix
could not
be extended or altered by evidence given in mitigation of
sentence.
[10] In the
Jansen
matter the
accused had pleaded guilty to a charge of raping a nine year old. In
his guilty plea he admitted having had sexual relations
with a person
under the age of 16 years, but provided the rider that he had done so
with her consent. Evidence was led subsequent
to the acceptance of
the plea, and in aggravation of sentence the State wished to refer to
evidence to the effect that the accused
had employed force in order
to have sex with the minor child. Davis J was of the view that to
have allowed that to have taken place,
would undoubtedly have changed
the factual matrix upon which the plea of guilty was accepted by the
State.
[11] Although the judgment of Davis J
provides that the essential factual matrix is set out in the plea
accepted by the State and
cannot be altered by evidence subsequently
adduced, this does not prevent the leading of evidence which does not
contradict the
plea, but which may be relevant to the question of
sentence. Even if contradictory evidence does emerge the conviction
on the plea
as accepted stands.
[12] Indeed, a Court would misdirect
itself if it failed to factor into its sentencing deliberations a
factual allegation contained
in a guilty plea accepted by the State.
See :
S v Cele
1990 (1) SACR
251
(A) at 254h – 255a
[13] With regard to submissions from
the bar in relation to sentence, it is undoubtedly the practice in
our Courts for statements
of fact to be made by the representative of
an accused in mitigation of sentence. Mostly such statements relate
to uncontentious
issues such as the age, family background and
employment details of the accused. Most often the State offers no
challenge to these
statements and they are accepted by the Court.
[14] However, neither the State nor
the Court are obliged to accept such statements and even more so
statements relating to the
facts of the commission of the crime. The
State may contest them and lead evidence to do so. The Court may
require them to be given
under oath, as occurred in this matter
[15] Whatever course the State or the
Court adopts, our procedure requires that it be fair to the accused.
The accused and/or the
legal representative must be informed, prior
to any judgment being given, that the Court requires the statements
to be made under
oath.
See :
R v Hartley
1966 (4) SA
219
(RA)
The principle that fairness must be
the guiding factor in dealing with such statements was reiterated in
S v Jabuvu
1969 (2) SA 466
(A) and again in this division in
S
v Shangase and Others
1972 (2) SA 410
(N) at 431H – 432C.
[16] It is important in this regard
that the State makes its attitude clearly known. If the State objects
to the allegations then
the accused will have been made aware that a
failure to testify will be accompanied by the risk of having any
allegations rejected.
See
S v Caleni
1990 (1) SACR
178
(C) at 181 e – f
S v Olivier
2010 (2) SACR 178
(SCA)
[17] In the present case the plea of
the appellant stated that she had become “depressed and
desperate”. Having accepted
her plea the State was then bound
by the fact that, as a result of the conduct of her deceased husband,
she had become depressed
and desperate.
[18] Although the learned Acting Judge
was entitled to indicate that she did not accept the further
submissions from the bar, a
substantial and compelling circumstance
had already been disclosed in the appellant’
s s112
statement.
Consequently, her final analysis of all the evidence was flawed. The
evidence led by the appellant did not contradict
her
s112
statement.
Albeit that the cross-examination of the appellant by the prosecutor
may have revealed other aggravating circumstances
relating to the
commission of the crime, the fact that the conduct of the deceased
had made her depressed and desperate constituted
a compelling and
substantial circumstance, entitling a Court not to impose the
prescribed sentence.
[19] This Court is accordingly at
large to determine an appropriate sentence. Taking into account all
the personal circumstances
of the appellant, and the circumstances of
the commission of her husband’s murder, I would view an
appropriate sentence to
be one of 20 years.
[20] In the circumstances I make the
following order :-
the appeal against sentence succeeds;
the sentence of life imprisonment is
set aside and substituted with an order that the appellant undergo
20 years imprisonment.
__________________
Patel DJP : I agree.
D Pillay J : I agree.
Date of hearing : 26
th
January 2011
Date of judgment : 4
th
March 2011
Counsel for the Appellant : I Mthembu
(instructed by Durban Justice Centre)
Counsel for the Respondent : D Paver
(instructed by the Director of Public Prosecutions