S v Kesielwe (K/S 50/99) [2008] ZANCHC 7 (29 February 2008)

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[2008] ZANCHC 7
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S v Kesielwe (K/S 50/99) [2008] ZANCHC 7 (29 February 2008)

Reportable:
YES / NO
Circulate
to Judges: YES / NO
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to Regional Magistrates: YES / NO
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: K/S 50
/99
Heard:
25/02/2008
Delivered:
29/02/2008
In
the appeal matter:
PIET
IVAN KESIELWE
Applicant
and
THE
STATE
Respondent
Coram: Bosielo AJP, Lacock J
et
Olivier J
JUDGMENT ON FULL
BENCH APPEAL
BOSIELO
AJP
On 8 March 2000, the appellant was
convicted of murder and sentenced to imprisonment for 15 years by
Steenkamp JP (as he then was)
sitting in the High Court, Kimberley.
This was after the court a quo had found that this case fell within
the ambit of
section 51(2)(a)(1)
of the
Criminal Law Amendment Act,
105 of 1997
and further that there were no substantial and
compelling circumstances (sacc) to justify a lesser sentence.
I interpose to state that this
appeal is against sentence only, the applicant having been granted
leave to appeal against the sentence
by Molwantwa AJ (as she then
was).
In order to adjudicate this appeal
properly it is, in my view, necessary to give a brief resumé of the
facts of the case. From
the admitted evidence, it is clear that on
the night of 5 June 1999 the deceased was at a shebeen in Galeshewe
with two of his
friends, Tom and Kabelo, where they enjoyed some
intoxicating liquor. Before they could leave the shebeen the
deceased bought
four loose cigarettes. He gave two to Tom and
retained the other two for himself. Tom then lit one cigarette
which they all
shared. Whilst the deceased was still smoking the
appellant approached them. He then requested the deceased to allow
him to smoke
whereupon the deceased refused. This refusal seems to
have irked and angered the appellant who mouthed some expletives to
the
deceased. When the deceased wanted to know what he meant, the
appellant without much ado, produced a knife from his trouser’s
pocket and stabbed the deceased. As the deceased fled, the
appellant pursued him and continued to stab him. According to Tom
and Kabelo the deceased had no weapon and never fought with the
appellant. The deceased was found some few minutes later inside
his
premises where he had died.
The report on the medico-legal
post-mortem examination on the deceased which was prepared by Dr Els
is of critical importance in
shedding more light on the nature and
seriousness of the injuries sustained by the deceased. According to
this report, the deceased
showed “twee steekwonde aan die linker
nek waar die carotis en interne jugulare betrek word. `n Verdere
steekwond deur die linker
oor tot teen die linker mastoied proses.”
The diagram attached to the report reveal two more stab wounds on
the back and one
just below the deceased’s chest. To my mind, the
medical report and the diagram attest to a wild and indiscriminate
stabbing
by the appellant on the deceased.
In his judgment on sentence, the
judge in the court a quo remarked that even without the severe
sentences peremptorily prescribed
by the
Criminal Law Amendment Act
105 of 1997
, he would still, due to the patent gravity and
seriousness of the offence, have imposed a sentence of imprisonment
for 15 years.
In describing this murder, the learned judge used
epithets like
“`n
lelike en afskuwelike moord.”
Speaking for myself, I have no quarrel with such a description.
Undoubtedly, the murder of the deceased was both unnecessary
and
uncalled for. The deceased was killed for a mere cigarette. Simply
for refusing to share a cigarette with the appellant,
the appellant
pursued him like an enraged bull and continued with his murderous
attack. After the deceased had fallen to the ground
probably due to
the cumulative effect of the multiple stab-wounds, the appellant
walked away nonchalantly, unmoved by the patent
horror of his deeds.
He offered no assistance to the helpless deceased whose life was
busy ebbing away. To my mind this can only
be described as being
brazen, cold, inhumane and callous.
At the hearing of this appeal, it
became common cause that this appeal turned on two critical legal
questions viz. firstly whether
the trial court erred in accepting as
a starting point that this murder attracted the provisions of the
Criminal Law Amendment
Act, 105 of 1997
when no
reference was made to the Act either in the indictment or during the
trial and secondly whether the trial court erred in
interpreting the
phrase
“substantial and
compelling circumstances”
as used in
section 51(3)
of the Act to mean
“exceptional
circumstances”
and
nothing less.
I now revert to the crisp legal
questions raised in this appeal. In interpreting the phrase
“compelling and substantial circumstances”
(SACC), the trial
judge relied on one of its own judgments. Although that judgment
was not mentioned by name, diligent research
revealed that it is
S
v Boer
2000(2) SACR
114 (NC) of p 123b where the learned judge stated that:
“
Ek
vereenselwig my verder met respek met die benadering in bogemelde
sake dat gewone versagtende omstandighede nie as wesentlik en
dwingende omstandighede beskou kan word wat die oplê van 'n ligter
as die voorgeskrewe vonnis regverdig nie.”
In the seminal judgment of
S
v Malgas
2001(1) SACR
469 (SCA) at p477f – 478b the approach adumbrated above was
discarded in the following terms:
“
The use of the
epithets 'substantial' and 'compelling' cannot be interpreted as
excluding even from consideration any of those factors.
They are
neither notionally nor linguistically appropriate to achieve that.
What they are apt to convey, is that the ultimate cumulative
impact
of those circumstances must be such as to justify a departure. It is
axiomatic in the normal process of sentencing that, while
each of a
number of mitigating factors when viewed in isolation may have little
persuasive force, their combined impact may be considerable.
Parliament cannot have been ignorant of that. There is no indication
in the language it has employed that it intended the enquiry
into the
possible existence of substantial and compelling circumstances
justifying a departure, to proceed in a radically different
way,
namely, by eliminating at the very threshold of the enquiry one or
more factors traditionally and rightly taken into consideration
when
assessing sentence. None of those factors have been singled out
either expressly or impliedly for exclusion from consideration.
[10]
To the extent therefore that there are dicta in the previously
decided cases that suggest that there are such factors which fall
to
be eliminated entirely either at the outset of the enquiry or at any
subsequent stage (eg age or the absence of previous convictions),
I
consider them to be erroneous. Equally erroneous, so it seems to me,
are dicta which suggest that for circumstances to qualify
as
substantial and compelling they must be 'exceptional' in the sense of
seldom encountered or rare. The frequency or infrequency
of the
existence of a set of circumstances is logically irrelevant to the
question of whether or not they are substantial and compelling.”
Counsel for the respondent, Adv
Birch conceded, in her Heads of Argument, that the trial judge erred
in his interpretation of the
phrase “substantial and compelling
circumstances”. With respect, I agree. It is clear that this
misdirection ineluctably
led the trial judge to the conclusion that,
as the appellant’s personal circumstances did not appear to him to
be exceptional,
they did not meet the test. Inevitably this led him
to impose the minimum sentence of 15 years imprisonment which is
prescribed
by the Act.
However this is not the end of the
enquiry. Having found that the trial judge misdirected himself on
sentencing, the vexed question
remains whether the misdirection is
of such a serious or material nature that it vitiates the exercise
of the sentencing discretion
by the trial court. See
S
v Malgas
(supra) at
p 478e. If it does, then it follows that this court, sitting as a
court of appeal, is free to interfere and consider
sentence afresh.
I am of the view that the misdirection committed by the trial judge
is so fundamental and material that it militates
against a proper
and judicious exercise of his sentencing discretion. As a result, I
hold the view that this court is free to
consider the sentence
afresh.
In para [3] and [4] above, I gave
out a brief description of the circumstances under which this murder
was committed. I also set
out the nature and extent of the injuries
inflicted on the deceased by the appellant. As against that, I need
to consider the
appellant’s personal circumstances. The appellant
was 20 years old at the time of this offence; he was unmarried and
had no
children; he was gainfully employed and earned R 125-00 per
week; the appellant had passed standard 7 at school; he is a first

offender; he expressed remorse for his deeds; it was accepted that
the appellant was under the influence of intoxicating liquor
to a
certain extent; he was found guilty of murder by
dolus
eventualis
and not
dolus
directus
.
As against the appellant’s
personal circumstances is the sad truth that the deceased, who
incidentally was only 20 years old at
the time, has lost his dear
life. It is common cause that the deceased did nothing to provoke
the appellant. The deceased was
stabbed because he refused to share
his cigarette with the appellant. Even during the attack, the
deceased did not fight back.
According to Tom and Kabelo the
deceased had no weapon. When the appellant stabbed him, the
deceased fled for his dear life.
As the appellant was desperate to
complete his mission he pursued the deceased and continued to stab
him.
The impression one gets from he
facts of the case is that the appellant is the kind of person who
always gets what he wants. He
brooks no dissension or opposition.
If need be, the appellant would resort to violence to get what he
wants. He is the kind of
person who goes to a shebeen armed with a
knife. The conclusion is inescapable that he took the knife along
so that he could use
it if the situation demands. All people who
are imbued with a modicum of intelligence and common sense know that
a knife is a
potentially dangerous weapon. It is capable of
producing fatal consequences. The appellant stabbed the deceased on
a very vital
part of a human body i.e. the neck. This severed an
important artery on the neck which led to excessive bleeding. The
appellant
continued to stab the deceased further. It is clear to me
that the appellant has no respect for human life. In this context,

I have found the dictum by
Van
Dijkhorst J
in
S
v Maqwathi
1985(4)
SA 22 (TPD) at p25 to be particularly apt and apposite where he
stated.
“
Die
howe mag nooit die indruk skep deur hulle vonnisse dat die menslike
lewe in die oë van die reg goedkoop is nie. Ook moet dit
aan daardie
lede van die gemeenskap wat maar te geneig is om die geringste grief
met 'n mes by te lê duidelik aan die verstand gebring
word dat dit
nie gedoog sal word nie.”
I am in respectful agreement with
this
dictim
.
It was argued on appellant’s
behalf by Mr Van Tonder that the fact that he was under the
influence of intoxicating liquor during
the commission of the
offence, should be considered as a strong mitigating fact. It is
true and in fact life experience has taught
us that intoxicating
liquor has the effect of adversely affecting people’s inhibitions
and judgment. It is furthermore true
that the problems attendant on
intoxicating liquor are legion and as old as mankind. One would not
be wrong to describe intoxication
as one of mankind’s inherent
frailties. However, it is not in every instance that intoxication
can be accepted as a strong mitigating
factor. One needs to analyse
the facts of each case clinically to determine how intoxication
influenced the commission of an offence.
In other cases,
intoxication has been found to be an aggravating fact. As
Holmes
JA
aptly remarked in
S
v Ndlovu
1965(4) SA
692 (AD) at p695C – E:
“
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.
On the other hand intoxication may, again depending
on the
circumstances, aggravate the aspect of blameworthiness (see
sec. 350
of the Code) as, for example, when a man deliberately fortifies
himself with liquor to enable him insensitively to carry out a fell
design. In the result, in seeking a basic principle in regard to
intoxication and extenuation in murder cases, it is neither
necessary
nor desirable to say more than that the Court has a
discretion, to be exercised judicially upon a consideration of the
facts of each
case, and in essence one is weighing the frailties of
the individual with the evil of his deed.”
Regretably
there is no clear evidence in
casu
regarding the extent of the appellant’s intoxication and what role,
if any, did intoxication play in the commission of this offence.
It
would therefore be wrong for this court to speculate on this aspect
either in favour of or against the appellant.
Mr van Tonder argued
that, because the indictment did not refer to the provisions of the
Criminal Law Amendment Act, those
provisions should not have been
applied when sentence was considered. This is in my view an
over-simplification of the legal position
in this regard.
The facts of this case (and
particularly the offence with which the appellant was charged) are
completely distinguishable from
those in
S
v Ndlovu
2003 (1)
SACR 331
(SCA), on which mr van Tonder relied in this regard.
Here the
“ordinary”
common law crime of murder attracted the prescribed sentence of 15
years imprisonment, and not some special or qualified form
of
murder.
Although it is obviously desirable
that an accused should be alerted to the provisions of the
Criminal
Law Amendment Act at
the earliest possible stage of a criminal
trial
“This rule is
clearly neither absolute nor inflexible”
(see
S v Makatu
2006 (2) SACR 582
(SCA) at 587c). Even where this was not done,
the basic question will still remain whether the accused had a fair
trial and
whether the accused suffered any resultant prejudice (see
S v Cunningham
2004 (2) SACR 16
(E) at 19b-c).
The appellant had
been legally represented. He also pleaded not guilty and therefore
exercised his right to put the prosecution
to the proof of the
offence. In my view the appellant was not prejudiced by the
omission in the indictment and mr van Tonder
did not argue to the
contrary.
Although I could not
find a formal notice of appeal in the record it is quite clear
that, when application was made for leave
to appeal, this argument
was never advanced.
I am of the view
that, even if it were to be assumed that the provisions of the
Criminal Law Amendment Act should
not be applied in this matter, a
sentence of 15 years imprisonment would nonetheless be the only
appropriate sentence. It is
therefore not necessary to arrive at a
final conclusion in this regard.
Given the peculiar circumstances of
this case, in particular, the brazen and callous manner in which the
deceased was killed, I
find that the personal circumstances of the
appellant pale into insignificance when weighed against the nature
and gravity of this
offence. Without doubt, any form of murder is a
serious offence as it has the inexorable result of depriving another
person of
his life. What compounds this murder is that the deceased
died for his own cigarette. Undoubtedly, the appellant has shown
himself
to be a danger to society. He is a man who roams about
armed with a knife which he does not hesitate to use with disastrous
and
fatal consequences at the slightest irritation. He deserves to
be taken out of circulation for a very long term for the protection
of society. The right to life is a universal and fundamental right
entrenched in our Bill of Rights. No-one has the right to
take
another person’s life. Those who roam about with knives and use
them to kill other people like appellant must face the
full might of
the law. Our courts cannot afford to create the impression that
they do not view murder as a serious offence, lest
the public gets
the impression that the courts regard human life as being cheap.
This will inevitably lead to the public losing
their confidence in
the criminal justice system and resorting to self-help.
I have carefully considered and
reappraised the entire spectrum of all the facts constituting
mitigating circumstances. Having given
this matter careful and
anxious consideration, I am of the view that a sentence of
imprisonment for 15 years is neither shockingly
inappropriate nor
disturbingly disproportionate to the offence for which appellant is
convicted. Speaking for myself, I find
that a sentence of
imprisonment for 15 years is both fair and appropriate as it
balances the interests of the appellant against
those of the public
whilst correctly reflecting the seriousness of the offence.
In the result, the appeal against
the sentence succeeds. The sentence imposed by the trial judge is
set aside and replaced with the
following: “The appellant is
sentenced to a term of imprisonment for 15 years which is antedated
to
8 March 2000”
.
_____________________
L
O BOSIELO
ACTING
JUDGE PRESIDENT
Northern
Cape Division
I
agree
_____________________
H
J LACOCK
JUDGE
Northern
Cape Division
I
agree
_____________________
C
J OLIVIER
JUDGE
Northern
Cape Division
On behalf of the Applicant
:
Adv. A. VAN TONDER
Instructed
by: KIMBERLEY JUSTICE CENTRE
On
behalf of the Respondent
:
Adv. T. BIRCH
Instructed
by: DIRECTOR PUBLIC PROSECUTIONS