S v Louw (CA&R 113/07) [2008] ZANCHC 2 (8 February 2008)

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[2008] ZANCHC 2
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S v Louw (CA&R 113/07) [2008] ZANCHC 2 (8 February 2008)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA&R 113
/07
Heard:
04/02/2008
Delivered:
08/02/2008
In
the matter:
STEPHANUS
LOUW Applicant
and
THE
STATE
Respondents
Coram: Bosielo AJP
et
Williams J
JUDGMENT ON APPEAL
BOSIELO
AJP
On 26 July 2006 the appellant was
convicted of the murder of one Denzil Van Wyk in the Regional Court,
Kakamas. The appellant
was sentenced to a term of imprisonment for
18 years, the regional magistrate having found that there were no
substantial and compelling
circumstances (sacc) to justify a lesser
sentence. The appellant has now lodged an appeal against the
sentence imposed on him
after he had successfully petitioned the
Judge-President of the Northern Cape Provincial Division.
It is clear from the Notice of
Appeal filed by the appellant that the sentence imposed on him is
placed under serious attack on
various grounds. The main ground
relied upon by the appellant is that the sentence is shockingly
severe and thus disturbingly
inappropriate. In support of this, the
appellant avers that the regional magistrate erred or misdirected
himself by inter alia,
not properly considering or attaching
appropriate value to various facts inter alia that the appellant is
a first offender regarding
crimes involving violence; that he is a
sole breadwinner for his family; that there was a measure of
provocation exacerbated by
the fact that he was under the influence
of alcohol and further that the regional magistrate over-emphasized
the seriousness of
the offence and the interests of the community at
the expense of the appellant’s personal circumstances.
In argument before us, counsel for
the appellant argued, quite forcefully, ‘that the sentence of 18
years imprisonment’, when
viewed against the appellant’s
personal circumstances, the nature of the crime and the interests of
society, is so disturbingly
disproportionate that it amounts to an
injustice.
Quite interestingly, counsel for
the respondent, conceded that although the murder for which the
accused was convicted is a serious
one, particularly as there was
dolus directus
,
the regional magistrate erred or misdirected himself by giving
insufficient weight to the appellant’s personal circumstances
and
in particular the circumstances under which this murder was
committed. Mr Bagananeng submitted that, given the facts of this
case and the appellant’s personal circumstances, a sentence of
imprisonment for twelve (12) years would be an appropriate sentence.
Based on the submissions made by
the respective counsel there are two crisp legal questions which we
have to decide, viz. firstly
whether the regional magistrate erred
in finding that there are no substantial and compelling
circumstances (sacc) within the meaning
ascribed to this phrase in
S
v Malgas
2001(1) SACR
469 (SCA) at page 477 para[a] read with page 482 para [E] to [I];
and whether, given the facts of this case, it can
be said that a
sentence of imprisonment for 18 years is so disproportionate to the
crime, the appellant and the legitimate interests
of society, to a
point where it can be described as unjust. To my mind, in order to
resolve this polemic, a proper consideration
of the facts of this
case is both imperative and inevitable. What follows is a brief
resumé of the evidence.
It is rather sad that the three
people who were involved in this sad saga were intimately known to
one another and connected by
some symbiotic relationship. It is
common cause that the appellant is the step-father to one Sylvia
Pretorius, (whom he received
into his family and raised from the
tender age of 6 years). At the time of this trial Sylvia was 22
years old. Sylvia on the
other hand was a girlfriend to Denzil Van
Wyk (the deceased). Having found the deceased relaxing in a bedroom
at the appellant’s
home with Sylvia, the appellant summarily
ordered the deceased to leave his premises. In the process, the
appellant hurled some
insults and expletives at the deceased. In
response, the deceased told the appellant that he would not leave as
he had a girlfriend
there with whom he had a child. This response
seem to have angered the appellant who then left for the kitchen
only to return
a while later armed with a bread-knife. The
appellant once again confronted the deceased and ordered him to
leave his house.
In return, the deceased repeated that he would not
leave whereupon the appellant threatened to stab him with the knife.
It is
not in dispute that the deceased told the appellant to stab
him as he threatened. Whilst this exchange of words continued, the
appellant suddenly raised his hand and stabbed the deceased on his
right eye. According to the accepted version, all three were
seated
on the bed when the appellant so stabbed the deceased. It was
formally admitted by the appellant at the trial that this
stab-wound
is the sole cause of the death of the deceased.
After evaluation of the evidence,
the regional magistrate found that the appellant murdered the
deceased with
dolus
directus
. Furthermore
the regional magistrate found the following to be seriously
aggravating: the fact that appellant went to fetch the
knife from
the kitchen; the fact that the deceased posed no danger to the
appellant; the fact that the deceased was killed for
a very flimsy
reason (i.e. the fact he did not bring money for the maintenance of
his child); the fact that by this murder the
appellant
robbed/deprived both Sylvia and her child of a lover and a father.
In fact the regional magistrate found that the peculiar
facts of
this case justified him to invoke his residual punitive powers in
terms of the provisions to Section 51(2) of the Act
to justify the
imposition of a further 3 years to the 15 years provided for as the
minimum sentence.
In considering whether the sentence
imposed on the appellant is appropriate or disturbingly
inappropriate, I am forced by the facts
of this case, to concede
that the murder for which the appellant was convicted is clearly
serious. Furthermore it is clear to
me that the appellant deserved
a severe sentence which will correctly reflect the seriousness of
this offence and act as a deterrent.
However, having perused the
judgment on sentence, I am of the view that the regional magistrate
misdirected himself on a number
of important aspects regarding
sentencing. Firstly it is common cause that at the material time
the appellant was under the influence
of liquor; secondly it is
common cause that the appellant was seriously angered by the
presence of the deceased at his home; thirdly
that when he ordered
the deceased to leave, the deceased taunted him and told him that he
will not leave; fourthly that even when
he, armed with a knife,
threatened to stab him, the deceased taunted and challenged him to
stab him. In my view it is hardly surprising
that, given the
prevailing circumstances, the appellant lost his head and in the
heat of anger stabbed the deceased. I believe
that those of us who
have had the experience of presiding over criminal trials, will
understand that it is one of the inherent
weaknesses or frailties of
mankind to loose one’s temper when one is exposed to a situation
where on is taunted and one’s authority
in his home is challenged
in a situation where one is under the influence of liquor. In my
view, these circumstances constitute
a cocktail for disaster.
Regarding the effect
of alcohol on people’s behaviour there is more than enough
empirical evidence, that alcohol adversely affects
people’s
inhibitions and reaction. The problem of alcohol or intoxication is
as old as mankind. As the learned
Holmes
JA
aptly remarked in
S
v Ndlovu
(2) 1965(4) SA
692 AD at p 695C:
“
Intoxication
is one of humanity's age-old frailties, which may, depending on the
circumstances, reduce the moral blameworthiness of
a crime, and may
even evoke a touch of compassion through the perceptive understanding
that man, seeking solace or pleasure in liquor,
may easily
over-indulge and thereby do the things which sober he would not do.”
Confronted
with a similar situation where intoxicating liquor featured
prominently in the commission of murder,
Holmes
JA
expressed the
following salutary warning in
S
v Sigwahla
1967(4) SA 566
(AD at 571D-E:
“
In
considering the relevance of intoxicating liquor to extenuating
circumstances the approach of a trial Court should be one of
perceptive
understanding of the accused's human frailties, balancing
them against the evil of his deed.”
Having read the
judgment of the regional magistrate, I have no doubt that he erred
seriously in this regard. The regional magistrate
simply paid no
heed at all to the dangerous cocktail of provocation, anger
compounded by intoxication which afflicted the appellant
at this
time.
In addition hereto, I find that the
appellant had impressive and compelling personal circumstances,
which, regrettably the regional
magistrate accorded very little
weight.
Inter aila
,
the appellant was 39 years old at the time; he has been married for
16 years; had 3 children of his own with his wife; added to
these;
are Sylvia and her brother Willem who were his step-children but
whom he had raised as his own children; he was gainfully
employed
where he earned R850-00 per month; he had passed Standard 7 at
school; he was a first offender regarding any offence involving
violence and had been in custody for ten(10) months awaiting trial.
In my view, all these facts taken together are so weighty
and
persuasive as to amount to substantial and compelling circumstances
to warrant a lesser sentence than the minimum sentence
prescribed by
the Act. It follows logically that I find that there is absolutely
no justification for the regional magistrate
to have invoked his
residual powers to add a further three(3) years to the fifteen (15)
years prescribed by the Act. Having said
so, it follows that the
regional magistrate erred or misdirected himself in considering an
appropriate sentence. As a result,
we are therefore free or at
large to consider the sentence afresh.
In reconsidering sentence I have
found that much-needed guiding light in the eloquent if not poignant
dictum in
S v J 1975(3)
SA 146
at page 159F
where
M.T. Steyn J
stated the following.
“
Die
Hof is nie 'n pynbank nie. Dit is nie 'n instrument van pyniging
waarop 'n beskuldigde gebreek moet word omdat hy 'n weersinwekkende
misdaad gepleeg het nie. Die Hof is die instrument waardeur die
samelewing handel beide om homself te beveilig sowel as om die
beskuldigde,
indien moontlik, deur middel van straf te red as mens en
te verbeter wanneer hy homself so gedra het dat hy die samelewing
onwettiglik
leed en skade aangedoen het.”
The circumstances of this case are
without doubt extremely sad and tragic. In as much as they evoke
anger at the deeds committed
by the appellant, they also evoke a
measure of compassion and pity for the appellant. What is clear is
that the appellant will
be haunted by the results of his foolish
action for the rest of his life. The memory of the events of the
day will weigh heavily
with him everyday of his life. This is one
heavy load that he cannot share with anybody. I have no doubt in my
mind that the appellant
deserves to be sent to jail for this crime.
Any other sentence would have the effect of trivialising the life of
the deceased.
However, any sentence to be imposed on the appellant,
without destroying him unnecessarily, should be such that it
reflects that
delicate balance between him, the appellant, the crime
for which he is convicted and the interests of society whilst at the
same
time is blended with mercy.
There is no suggestion that that
the appellant has a propensity to commit crimes involving violence.
It cannot therefore be said
that the appellant is such a serious
danger to society that he has to be taken out of circulation for a
very long time. I hold
the view that the appellant should be given
the kind of sentence which, whilst it effectively punishes him for
his deeds, it will
at the same time serve as an incentive to him to
rehabilitate himself with the real hope that one day, he will leave
the prison
door behind him, well reformed to resume his rightful
position in society to lead a normal life of a law-abiding citizen
and contribute
positively to the national project of transforming
our society and building the nation.
Having given this
matter anxious consideration, I am of the view that the appeal
against sentence must prevail.
In
the result, I make the following order.
The appeal against the
sentence of 18 years imprisonment succeeds.
The sentence of imprisonment for 18
years is set aside and replaced with a sentence of imprisonment of
15 years, with 5 years thereof
suspended for 5 years on condition
that the accused is not convicted of any offence involving violence
committed during the period
of suspension. This sentence is
antedated to 27 July
2006.
_____________________
L
O BOSIELO
ACTING
JUDGE PRESIDENT
Northern
Cape Division
I
concur
_____________________
C
C WILLIAMS
JUDGE
Northern
Cape Division
On behalf of the Applicant
:
Adv. P J CLOETE
Instructed
by: KIMBERLEY JUSTICE CENTRE
On
behalf of the Respondent
:
Adv. W BAGANANENG
Instructed
by: DIRECTOR PUBLIC PROSECUTIONS