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[2008] ZAWCHC 253
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Bondt v S (A405/2007) [2008] ZAWCHC 253 (22 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A405/2007
DATE:
22
AUGUST 2008
In
the matter between:
MARTIN
BONDT
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
BOZALEK,
J
The
appellant was convicted of murder in the Bellville Regional Court on
14 July 2006 and sentenced to 15 years imprisonment.
He
successfully petitioned this Court for leave to appeal against both
conviction and sentence.
The
appellant had pleaded not guilty, but made a variety of admissions,
including that he stabbed the deceased, one Leonard Louw,
who died as
a result of the injury.
The
only issue before the magistrate was whether the
appellant had acted in self-defence or not.
Apart
from the various admissions made by the appelant and the contents of
the post-mortem examination report, which likewise was
admitted, the
State's case consisted of two eye witnesses, a Mr Mark Joubert and
the deceased's ten year old daughter.
Joubert
testified that the appellant had been very drunk on the night in
question, that he had been waving a knife around and that
before the
Incident he had stated that he felt the urge to kill someone. The
appellant then engaged the deceased in gangster language
and when the
deceased did not express any interest in continuing the conversation,
had suddenly, without provocation, stabbed the
deceased in his neck
The deceased fJed to his house, emerging only to ask why the
appellant had stabbed him Shortly afterwards
the deceased passed away
Joubert's attention had been momentarily distracted at the point when
the appellant stabbed the deceased,
but on hearing the sound of the
fatal blow, he had turned his head and noted that the deceased was
completely unarmed. There had
been no prior struggle between the
appellant and the deceased.
Joubert's
evidence was corroborated in all material respects by that of the
deceased's daughter, who whilst playing in the street
nearby, had
witnessed the appellant stabbing her father.
The
appellant testified that it was the deceased who had launched an
unprovoked assault on him by attempting to stab him. In response
he
had seized the deceased's upraised arm with his left hand and
extracted his own knife from his pocket. The deceased had struggled
to free his arm and the appellant, in the process of trying to stab
the deceased in his arm, had instead delivered a fatal blow
to his
throat and chest area.
The
post-mortem report revealed that the cause of death was a single
knife wound to the chest and neck.
Appellant's
counsel, Mr Carnow, argued that the magistrate had erred in accepting
the testimony of Joubert as credible and reliable
and had failed to
have regard to the material improbabilities therein. He offered no
criticism of the child's corroborating evidence
however, and in fact
ignored it.
The
magistrate carefully analysed all the evidence, in the process
considering the probabilities as well. He found that the two
State
witnesses corroborated each other in material respects and were both
good and credible witnesses.
He
was critical of the appellants evidence and rejected it as false, not
least because of the improbabilities it contained. The
appellant was
an extremely poor witness whose version of events was inherently
improbable. He vacillated between stating that he
was very drunk and
could not remember important aspects of the events, on the one hand,
and on the other doggedfy insisting that
his detailed account of how
the deceased had been the aggressor was correct.
In
my view, there is absolutely no merit to the appellant's appeal
against his conviction.
In
terms of the provisions of section 51 of Act 105 of 1997, read with
part 2 of schedule 2, the appellant qualified for a minimum
sentence
of 15 years imprisonment. The magistrate found no substantial and
compelling circumstances and imposed the minimum sentence.
On
behalf of the appellant it was argued that the magistrate erred in
finding that there were no such circumstances warranting a
lesser
sentence and, furthermore, that the sentence invokes a sense of
shock.
At
the time of the commission of the offence, the accused was 29 years
of age, unmarried and had been released from prison three
weeks
previously. Although he had a half a dozen previous convictions
over the previous ten years, these were all for offences
involving
dishonesty and therefore his conviction of murder constitutes his
first crime of violence.
The
appellant did express remorse for having taken the deceaseds life
although this was somewhat diluted by his steadfast denial
that he
had been the unprovoked aggressor.
However,
potentially the strongest mitigating factor present in my view was
the role that alcohol played in the commission of the
offence. The
State witness, Joubert, testified variously that the appellant had
been "drasties onder die invloed van drank,
baie dronk en
smoordronk The magistrate, who accepted Joubert's evidence in its
totality, found, in sentencing the appellant, that
the accused's
state of drunkenness could not be regarded as a substantial and
compelling circumstance for two reasons. Firstly,
the appellant's
legal representative had not contended that had it not been for the
consumption of alcohol he would have conducted
himself differently,
and secondly, although the appellant had clearly been under the
influence of alcohol, it was apparent that
he had known what he was
doing. In my view the magistrates reasoning in this regard was
flawed. What exactly was argued on behalf
of appellant in regard to
the role of alcohol was not recorded, but the magistrate should not
have regarded it as necessary for
the appellant's counsel to have
specifically argued that the excessive consumption of alcohol must
have affected the appellant's
conduct. In the circumstances of the
matter that proposition was largely self-evident. In regard to the
magistrate's second reason,
there was never any suggestion that the
appellant was so drunk that he did not know what he was doing. Had
that been the case,
a different defence would no doubt have been
raised. Nor does the consumption of alcohol have to result in an
accused no longer
being in control of his or her actions before it
can be raised as a mitigating factor.
It
follows that the magistrate misdirected himself in his approach to
the question of whether the accused's intoxicated state was
a
mitigating factor or not. The intake of alcohol or drugs is not
necessarily a mitigating factor and would depend on the circumstances
of the case. Generally, however, once a Court is satisfied that the
offender was intoxicated, it will regard this as a mitigating
factor,
the reason for this being that liquor "can arouse senses and
inhibit sensibilities", see
S
v Kwele. 1 990(1) SACR 251
(A)
at
25C to D
.
However, it has to be shown that the intoxication actually impaired
the mental faculties of the offender, and only then can his
blameworthiness be regarded as diminished,
S
v M, 1994f2) SACR 24 (A) at 29H to I
.
In
my view there can be little doubt that the appellant's mental
faculties were impaired by his excessive consumption of alcohol.
His
genera! drunkenness, aggressive behaviour with a knife and senseless
attack on the deceased in a public place in full view
of witnesses
cannot reasonably support any other conclusion.
In
S
v Malqas. 2001 M) SACR 469
,
it was held that:-
"The
legislature has deliberately left it to the Courts to decide whether
the circumstances of any particular case call for
a departure from
the prescribed sentence. While the emphasis has shifted to the
objective gravity of the type of crime and the
need for effective
sanctions, this does not mean that all other considerations are to be
ignored. All factors traditionally taken
into account in sentencing,
whether or not they diminish moral guilt
h
thus continue to play a role. None is excluded at the outset from
consideration in the sentencing process. The ultimate impact
of all
the circumstances relevant to sentencing must be measured against the
composite yardstick "substantial and compelling"
and must
be such as to cumulatively justify a departure from the
standardised response that the legislature has ordained
Apart
from adopting an incorrect approach to the question of the
appellant's intoxication, the magistrate also appeared to limit
his
inquiry as to whether there was substantia) and compelling
circumstances solely to that issue.
There
are, however, in my view
r
other mitigating factors which play a role in the inquiry, notably
the accuseds expression of remorse and the fact that although
he has
previous convictions, the present one represents the first crime of
violence of which he has been convicted.
By
reason of the magistrate's misdirection in the above regards, this
Court is entitled to consider sentence afresh.
When
regard is had to the triad of interests, the deadly and unprovoked
assault upon the deceased and the appellants expressed blood
lust
that night are clearly aggravating factors.
Nonetheless,
I consider that the mitigating factors mentioned above, but
principally the appellant's state of intoxication, are
sufficient to
constitute substantial and compelling circumstances and justify a
departure from the standardised minimum sentence
laid down by the
legislature.
However,
the secondary consequence of the minimum sentence dispensation, taken
together with the seriousness of the offence and
the aggravating
factors present, is that a substantia! term of imprisonment is the
only appropriate sentence in the present circumstances.
Having
regard to all the relevant factors, I consider a term of imprisonment
of 12 years is appropriate I would, therefore,
UPHOLD
THE APPEAL AGAINST SENTENCE AND SUBSTITUTE A SENTENCE OF 12 YEARS
IMPRISONMENT.
BOZALEK, J
I
agree.
STEYN,
A J
The
following order is made;-
The
appeal against conviction is
DISMISSED
AND THE CONVICTION OF MURDER IS CONFIRMED
.
The
appeal against sentence is
UPHELD
AND THE SENTENCE OF 15 YEARS IS SET ASIDE AND REPLACED WITH A
SENTENCE OF 12 YEARS IMPRISONMENT
with effect from 14 July 2006.
The
warning and declaration in terms of section 286 of Act 51 of 1977
and section 102 of Act 60 of 2000 respectively,
REMAIN
INTACT
.
BOZALEK,
J