IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
(Coram: Henney, J et Cloete, J et Nziweni, J )
Case No.: A98/2024
In the matter between:
MUEPA PAUL KASONGO Appellant
and
THE STATE Respondent
Heard: 24 January 2025, supplementary notes delivered on 30 January 2025
and 7 February 2025
Delivered electronically: 20 March 2025
JUDGMENT
HENNEY, J (CLOETE, J concurring , NZIWENI, J dissenting ):
OFFICE OF THE CHIEF JUSflCE
REPUBLIC OF SOUTH AFRICA
Introduction:
[1] I have considered the judgment of my colleague and whilst I agree with some
of her findings , I am unable to agree firstly, with her finding that the court a quo was
correct in concluding that the murder that was committed by the appellant was
planned and premeditated. The facts require some further elaboration and
elucidation in order to have a proper understanding of the evidence placed before
the court a quo, which it took into consideration and upon which it made its factual
findings. Secondly , I am also unable to agree that the sentence imposed by the
court a quo, of life imprisonment was an appropriate sentence.
[2] In coming to the conclusion that there was premeditation in relation to the
murder of the deceased, the court a quo stated at paragraph 37 of its judgment …
“The course of action in which the killing of the deceased was carried out, the
circumstances under which it was carried out and the putting into effect of a
performance to mislead the police and everyone on how her life came to an end,
established premeditation.” Accordingly, the court a quo found in effect that
premeditation can, as a matter of law, also be established by evidence as to what
occurred during the commission of an offence and thereafter. Before I deal with this
aspect, it is however necessary at the out set to state the following .
[3] It is well established that when leave to appeal is granted only against
sentence as was in this case, a court of appeal may not, save possibly in exceptional
instances, deal with the merits of the case. Although consid ered within the context of
an attempt to appeal a conviction when leave had only been granted against
sentence in: S v Matshoba and Another 1977 (2) SA 671 (A); S v Heller 1970 (4) SA
679 (A); S v Cassidy 1978 (1) SA 687 (A) 690, it follows logically that an appeal court
is not at liberty, without more, to delve into the merits of the case again and make
fresh factual findings not dealt with in the trial court’s judgment on conviction, when
considering whether interference with the sentence imposed is warra nted. Put
differently, the sentence imposed must be evaluated within the “constraints” of the
trial court’s factual findings in its judgment on conviction.
[4] Accordingly, we must consider whether on the facts found proven by the trial
court , premeditati on was established, which in my view is not the case. Even if this
could be regarded as an exceptional case, the court a quo did not set out on what
facts it concluded that there was planning and premeditation.
Summary of evidence and findings of the court a quo:
[5] Unfortunately, I have to deal with the merits of this case in considering
whether there were facts upon which the court a quo correctly concluded that
premeditation was established since my colleague has made separate factual
findings on the merits that were not included in the court a quo’s judgment on
conviction to support her conclusion that the court a quo was correct in finding that
there was planning and premeditation.
[6] The case for the prose cution was not confined to evidence when the murder
was committed, being the evening of 3 December 2018, but also on certain events
and occurrences that happened in particular on the evening of 1 December 2018, at
the house in Silversands that the deceased was house sitting ; and to a lesser extent ,
the events of 2 December 2018, and the morning of 3 December 2018, when the
appellant tried to have contact with the deceased at her place of employment at
Poetry, Tygervalley Centre .
[7] On the evening of 1 December 2018, a friend of the deceased, Zintle Fekisi
(“Zintle ”) who was a student at the University of Western Cape (“UWC”) together with
her boyfriend Xolela Nosana (“Xolela”) and another male person visited the
deceased at the house in Silversands that she was house sitting for the owners.
After their arrival at the house, the deceased and the appellant were involved in an
argument. This , according to the appellant, related to the deceased being
dissatisfied with messages that were sent on her cellular phone to her about the
appellant’s alleged infidelity the previous evening. Another version given by one of
the state witnesses was that she had been told by the dece ased that the appellant
was upset and jealous because of information contained on her cellular phone which
he believed was evidence that she was unfa ithful to him.
[8] At some stage while they were sitting in the lounge the cellular phone of the
deceased disappeared, and after some search it was found under the seat where the
appellant was sitting in the lounge. Shortly after that , the appellant disappeared from
the company and went to one of the bedrooms. The deceased after some time
followed him into the bedroom and both stayed away for about 15 minutes.
[9] Zintle was annoyed by their absence and went to look for them and heard
them in the bedroom with the door closed where she heard the deceased shouting ,
and she could hear that the appellant and the deceased were involved in an
argument . There was some tussle and movement, and it sounded like he wanted to
take away her cellular phone. Zintle opened the door and observed t hat the appellant
held onto the one hand of the deceased and in his other hand , he was holding onto
her cellular phone which he did not want to give back to her. The deceased told her
that the appellant had strangled her, but the appellant denied it. And in response to
this, the deceased was laughing . Zintle did not take this allegation seriously. She left
them alone in the room to talk things out while she was standing outside. At some
stage after that , she again heard the de ceased screaming and once again opened
the bedroom door.
[10] The appellant insisted that he wanted to continue speaking to the deceased ,
whereupon Zintle said that she had given him a chance to talk to her and refused
that he continue speaking to her . At that same time the two other male persons
intervened as well, and the appellant was forced to give the cell phone back to her.
Zintle then dragged the deceased away and requested her to pack her things. After
the appellant was separated by the two male friends who were present, the appellant
wanted to go back to her, and he had to be restrained by the two male persons, who
dragged him outside .
[11] Zintle and her two friends, the deceased and the appellant left the house and
the deceased spent the night with them at the hostel of UWC. The deceased’s
friends did not want the appellant to go with them , but the deceased, however,
begged Zintle to take the appellant with them, and he accompanied them in the car
to UWC. But due to the appellant’s ear lier conduct the deceased’s friends did not
want to be in the appellant’s company and refused that he join them at UWC. He
was dropped off at UWC and had to take an Uber taxi, to where he wanted to go .
[12] The deceased later discovered that her cellular phone was missing and
thought that the appellant may have taken it. It needs to be stated that certain
hearsay evidence was given by State witnesses and taken into account by the court
a quo without the trial judge making a ruling on its admissibility. Especially, where
Zintle stated that the deceased on more than one occasion told her that the appellant
strangled her. Xolela confirmed more or less what she testified, except that he heard
that the deceased wh ilst in the room shouted “Ouch Muepa you are slapping me.”
He furthermore testified that after he went to the room he observed that the appellant
was pulling the arm of the deceased. The deceased furthermore told the appellant
“No I don’t want to talk beca use you are strangling and biting me.”
[13] At that stage Xolela and the other male friend separated the appellant and the
deceased from each other. This, however, did not deter the appellant from
scratching the deceased at the back of her shoulder. Thereafter all of them left and
went to UWC. The appellant was in the car, and he continued to reach out to the
deceased and was pulling and scratching at her . The appellant was warned that
should he continue doing this , he would be asked to leave the car and be left at the
side of the road. After they arrived at UWC , the appellant took an Uber taxi and w ent
on his own way.
[14] Accordingly the only evidence about the deceased allegedly being strangled
was inadmissible hearsay evidence, emanating from Zintle who said that when she
entered the room the deceased said she was strangled, which the appellant denied,
and the deceased in reaction to this just laughed.
[15] Further hearsay evidence that was taken into account by the court a quo was
of a witness , Denzil Cupido , a policeman to whom the deceased allegedly reported
the next day that the appellant strangled her in front of her friends, which apart from
being hearsay is inconsistent with the evidence of Zintle who did not see it
happening , and neither did Xolela .
[16] There was also evidence that on the next day, 2 December 2018, the
appellant tried to see the deceased at her place of work at Poetry Store, Tygervalley,
but she refused to speak to him. On the morning of 3 December 2018, he made
another attempt to see her at her place of work, this attempt was also unsuccessful.
Two witnesses , her colleagues from Poetry , gave evidence which is hearsay and
was basically about what the deceased had told them , and does not take the matter
any further. The only useful piece s of this evidence is that the deceased had no
cellular phone which caused her to ask one of her colleagues to lend her phone to
the deceased in order for her to send a message to the appellant to return her
cellular phone ; and that the appellant on these two days came to the Poetry Store
where he wanted to speak to the deceased . She refused to speak to him and he
insisted that he wanted to. He was asked to leave when he did not respect her
wishes.
[17] Little if any value can in my view be attached to this evidence, because it is
mainly based on hearsay evidence of the deceased. None of the witnesses,
especially those who were present on the evening at the house on 1 December 2018
observed that the decea sed had been strangled by the appellant or bitten by him.
What is, however, clear from their evidence was that he pulled her arm, lashed out at
her and that he scratched her while they argued .
[18] My colleague in her judgment states without any substant iation that ‘Evidence
(sic) shows that amongst other things he strangled her ’. On the further evidence of
the appellant himself he later on the evening of 3 December 2018 visited the
deceased at the place where she was house sitting, and where he killed he r. The
appellant described what happened between him and the deceased which eventually
led to him stabbing her 11 times.
[19] Caroline Visser, a neighbour living in a house not far from where the incident
occurred , was sleeping inside her house and heard a lady crying which she
described as if she was badly hurt. She was not sure where it came from and
thought that if something should happen her children would alert her. She later fell
asleep while the crying continued. Her son , Curtley Visser who was standing
outside testified that he heard an argument between two persons. He heard a girl
shouting and saying, ‘why are you doing this to me’. He further testified he heard
nothing else. He and his friends saw two persons at the house and at one stage the y
went to the shop and walked past the house, but they could only see two persons
but could not see any faces.
[20] His further evidence was that on the next day the appellant came to their
house and told him that his girlfriend was lying in the passage of the house and that
there is blood on the floor. He went to the house and observed that the front door
was partially open, but the burglar gate was still closed, and they could not gain
access to the house. They used a hammer and managed to break open the burglar
gate and gained entry to the house, where they found the body of the deceased. It is
clear, unlike the court a quo found, that the Vissers did not observe what happened.
There is no evidence as the court a quo found that the appel lant went back into the
house. Or that he was carrying a knife, whilst doing so.
[21] A further concern is that although the legal representative of the appellant did
not challenge the contradictions in the evidence of the Vissers , the court a quo also
did not deal with it. It seems that the son Curtley did not hear a person crying as if
she was hurt, like his mother who was inside did, although he was outside and closer
to where the deceased and the appellant were .
[22] I agree that the appellant’s version was correctly rejected by the court a quo
where he tried to proffer a version that it was the deceased that attacked him first
and he tried to defend himself , although t here were no other witnesses to the
incident. Clearly, even if the deceased was the one who attacked him, his conduct in
retaliation far exceed ed the bounds of self-defence .
[23] However the court a quo further misdirected itself by concluding that the
conduct of the appellant on the day after he committed the murder by ‘putting into
effect of a performance to mislead the police and everyone on how her life came to
an end’, was indicative of p lanning and premeditation. The conduct of a perpetrator
not prior to, but after , the commission of an offence can not be regarded as evidence
of planning and premeditation.
[24] It is well established1 that the conduct to be considered of a perpetrator o f a
crime for the purposes of planning and premeditation must be the conduct before
(although not even long before), but not during , or after the commission of the
offence . A person cannot plan or premeditate to commit an offence whilst such a
person is in the process of committing it through the conduct or the manner in which
it was committed, in the absence of any evidence to substantiate such a finding.
Further , the conduct of the person afterwards cannot be re garded as conduct to
establish or infer planning and premeditation.
[25] It is clear from the record that the evidence of the circumstances under which
the killing of the deceased was carried out is sparse and was principally based on
the version of the a ppellant, who was not an honest and trustworthy witness and the
court a quo was correct to reject his version of events as ‘beyond reasonable doubt
false’. However, what is not clear are the circumstances under which the trial court
considered that the kil ling took place. These circumstances were not dealt with by
the court a quo, and no r was any factual basis set out by the trial court as to what
those circumstances might be in concluding that there was premeditation. On a
conspectus of the evidence, I am not persuaded that the trial court was correct in its
finding that there was planning and premeditation.
The findings and decision of my colleague with regard to whether there was planning
and premeditation :
[26] In my respectful view, my colleague impermissibly delved into the merits of
the case again and made fresh factual findings not dealt with in the trial court’s
judgment on conviction, when she sought to make factual findings as to the
circumstances, which t he court a quo did not make , in concluding that the murder
was premeditated.
[27] She refers to the numerous stab wounds the appellant had inflicted upon the
deceased in committing the murder to substantiate that there was planning and
premeditation, which the trial court did not do. As I understand her judgment, what
1 See Jordaan, Kekana and S v Raath 2009(2) SACR 46(C)
my learned colleague is saying is that planning and premeditation to murder on the
part of a perpetrator can also be formed during the commission of the offence , and
is not limited to events preceding it, i.e that by having regard to the consequences
(the violence meted out) of a perpetrator’s action during the commission of the
murder and not prior to it, one can ex post facto conclude that there was planning
and premeditation.
[28] Put diffe rently, and in the absence of evidence proving premeditation (whether
direct or by inferential reasoning) it cannot be inferred only from the manner in which
the violence was meted out that there was planning and premeditation. Such an
approach is contrary to the trite legal principle that this inferential reasoning must
exclude every other reasonable inference, especially in the absence of any other
evidence, which the state did not adduce . In other words, based on the trial court’s
own factual findings, o ne cannot exclude the possibility that the murder could also
have been committed in the heat of the moment. ( R v Blom 1939 AD 188 at 202).
[29] As previously stated my colleague’s approach is also not consistent with the
well-established principle that planning and premeditation occur before the
commission of the offence, and as stated in Kekana (20142), even where the
planning and premeditation occurred minutes before the commission of the offence ,
and that there should be clear evidence about that to establish premeditation beyond
reasonable doubt. In this regard Mathopa AJA (as he then was) stated … “[13] In my
view it is not necessary that the appellant should have thought or planned his action
a long period of time in advance before carrying out his plan. Time is not the only
consideration because even a few minutes are enough to carry out a premeditated
action.
The appellant pertinently admitted that after he saw his clothes, he formed a n
intention and in his own words he decided to end it all and kill the deceased. He then
gave effect to this decision. He went outside to fetch petrol. He re -entered the house
and poured it on the bed of the deceased while at the same time telling her of h is
intention. He set it alight with the petrol. He locked the deceased in the room. He
spilled the petrol in the passage, kitchen and dining room. The locking of the door
2 S v Kekana [2014] ZASCA 158(1 October 2014 at paras 13 -14
and further pouring of petrol show that he was carefully implementing a plan to
preve nt her escape and to ensure that she died in the blaze. To my mind, this is
proof of premeditation on his part. It follows that the appellant was correctly
convicted of premeditated murder .”
[30] Accordingly, e ven if the time frame between planning and pre meditation and
the commission of the offence was for a relative ly short period it must occur before
the commission . The timeframe before the commission plays a role. In Jordaan3,
Binns - Ward stated the following about the definition of premeditation … “Indeed, the
definition of 'premeditation' in the Oxford Dictionary of English suggests that the
concept of planning is wrapped up in that of 'premeditation': viz 'the action of
planning something (especially a crime) beforehand; intent': t he defendant
said there was no planning or premeditation .” (own emphasis)
[31] A full bench of this court in Raath4 (Bozalek J; Louw J and Goliath J
concurring) said definitively that “ The concept of a planned or premeditated murder
is not statutorily defined. We were not referred to, nor was I able to find any
authoritative pronouncement in our case law concerning this concept. By and large it
would seem that the question of whether a murder was planned or premeditated has
been dealt with by the court on a casuistic basis. The Concise Oxford English
Dictionary 10 ed, revised, gives the meaning of premeditate as 'to think out or plan
beforehand' whilst 'to plan' is given as meaning 'to decide on, arrange in advance,
make preparations for an anticipated event or time'. Clearly the concept suggests a
deliberate weighing -up of the proposed criminal conduct as opposed to the
commission of the crime on the spur of the moment or in unexpect ed circumstances .
There is, however, a broad continuum between the two poles of a murder committed
in the heat of the moment and a murder which may have been conceived and
planned over months or even years before its execution. In my view only an
examinati on of all the circumstances surrounding any particular murder, including not
least the accused's state of mind, will allow one to arrive at a conclusion as to
whether a particular murder is 'planned or premeditated '. In such an evaluation
3 S v Jordaan and others 2018 (1) SACR 522 WCC at para 129
4 S v Raath 2009 (2) SACR 46(C) at para 16 I
the period of tim e between the accused forming the intent to commit the murder and
carrying out this intention is obviously of cardinal importance but, equally, does not at
some arbitrary point, provide a ready -made answer to the question of whether the
murder was 'planned or premeditated ” (emphasis added)
[32] In my view, by having regard to the ‘violence meted out ’ and the number of
stab wounds inflicted as referred to by my learned colleague in great detail in her
judgment, these factors are instead indicative of an intention to murder and not
indicative of premeditation. In Taunyane5 it was aptly stated that … “In deciding
whether or not appellant killed the deceased in circumstances where such killing was
planned or premeditated, the test is not whether there was an intention to kill. That
had already been dealt with in finding that the killing was an act of mur der.”
[33] The SCA said the following with regards to the distinct differences between
planning and premeditation and intention in Peloeole6:
“It is thus trite that in order for the State to secure a conviction on a murder
charge, it must prove all the common law elements of the offence, including
the element of intent (dolus). The number of shots a perpetrator fires at the
deceased is one of the factors a court would consider as indicative of the
intent to kill; the determination to end life. The ph rase ‘planned or
premeditated’ is not an element of murder. It is a phrase introduced by the
minimum sentence legislation (the Act), as one of the aggravating factors in
the commission of murder . In the instance where one or more of these
aggravating facto rs are found to be present, the courts are enjoined to impose
a sentence not less than the minimum prescribed. In the case of murder, such
a sentence would be life imprisonment. These aggravating factors are listed in
s 51(1) of the Act. In S v Malgas this Court held that it is permissible to depart
from the sentence prescribed by the Act, should the court find that there are
substantial and compelling circumstances justifying a deviation from the
prescribed minimum sentence . The question whether the murder was planned
5 S v Tuanyane 2018(1) SACR 163 (GJ)
6 Benedict Moagi Peloe ole v Director of Public Prosecutions. Gauteng (740/2021) [2021]
ZASCA117;2022(2) SACR 349 (SCA) at para 9
or premeditated is thus relevant for sentencing, and not for conviction. Though
the perpetrator in his state of mind may have both the intent and
premeditation to commit the crime, the intent has to be present during the
commission of the crim e, while premeditation is, as a matter of logic, limited
only to the state of mind before the commission of the crime . It is for that
reason that premeditation would not exist in the case of negligence (culpa).
There is, therefore, a symbiotic relationship between the two concepts, in that
they both relate to the state of mind of the perpetrator. The submission by
appellant’s counsel that the Learned Judge in the high court conflated the two
concepts is thus incorrect. I will return to the question of the a ppellant’s state
of mind before he committed the murders .” (emphasis added)
[34] It is accordingly clear that by having regard to violence meted out and the
multiple times the appellant in a very violent manner stabbed the deceased to death
are factors a court would consider as indicative of an intention to kill. And as stated
in the Peloe ole case “ the determinati on to end life”.
[35] In my view, the trial court as well as my learned colleague with respect
conflated the concept s of premeditation and intent to murder. The conduct of the
appellant during the attack on the deceased clearly demonstrated that he had direct
intention to murder the deceased if regard is to be had to the gruesome and violent
manner as described by my colleague how he killed t he deceased and the multiple
times he stabbed her. Thus, it was said in Dlodlo7 in respect of drawing an inference
of an intention to murder:
“The subjective state of mind of an accused person at the time of the infliction
of a fatal injury is not ordinar ily capable of direct proof, and can normally only
be inferred from all the circumstances leading up to and surrounding the
infliction of that injury. Where, however, the accused person's subjective state
of mind at the relevant time is sought to be proved by inference, the inference
sought to be drawn must be consistent with all the proved facts, and the
proved facts should be such that they exclude every other reasonable
7 S v Dlodlo 1966(2) SA 401 (AD) at 405 G -H
inference save the one sought to be drawn. If they do not exclude every other
reasona ble inference, then there must be a reasonable doubt whether the
inference sought to be drawn is the correct one. (See R v Blom, 1939 AD 188
at pp. 202 - 3.)”
[36] In dealing with intention to murder, a court deals with the subjective state of
mind of the perpetrator at the time of commission of the offence , whereas when
dealing with the question whether there is planning and premeditation , the court
deals with the state of mind of a perpetrator to give effect to his murderous intent,
before the commiss ion of the offence . There is in my view no evidence , direct or
circumstantial , from which an inference be drawn that in the present case the murder
of the deceased was premeditated when regard is had to the established legal
principles referred to above .
[37] None of the circumstances and facts referred to by the court a quo
establishe d planning and premeditation. It is trite that there is an onus on the
prosecution to prove beyond reasonable doubt planning or premeditation. The state
did not attempt to do so because firstly, it never alleged in the indictment that the
murder was committed with planning and premeditation ; and secondly , because it
could not have had such evidence , or it would have been adduced. This concession
was made by counsel for the State during argument in the appeal , and rightly so. It
is for all of these reasons that I am unable to agree with my learned colleague as
well as the court a quo that the murder was planned and premeditated.
Jurisdiction to impose sentence of life imprisonment
[38] My colleague has comprehensively dealt with the legal position where an
indictment or charge sheet does not specifically refer to premeditation when
proffering a particular charge against an accused. I agree with her assessment. In
my view , given what is stated earlier in this judgment, there was no need for the
court a quo to conclude there was planning and premeditation , or even for the
prosecution to allege and prove that it was such, in order for the court as a High
Court to impose a sentence of life imprisonment. In any murder case or crime where
there is justification or sufficient aggravating circumstances to impose a sentence of
life imprisonment the High Court may impose such a sentence. This is b ecause of
the High Court’s inherent power to impo se a sentence of life imprisonment. See
Peloe olo8 where the minority judgment found that the absence of planning and
premeditation is not a jurisdictional fact that has to be established for a High Court to
impose a sentence of life imprisonment, where th ere are sufficiently aggravating
circumstances by the High Court to impose such a sentence : It is different in the
case of a Regional Court which ordinarily , but for the provisions of section 51(1) of
the Criminal Law (Sentencing) Act 105 of 1997, does not have jurisdiction to impose
a sentence of life imprisonment. In this regard, Du Toit, De Jager, Paizes , Skeen
and Van Der Merwe9 state the following in this regard, with reference to Baloyi and
Peloeolo :
“It should be noted that, in these cases, the trial courts were High Courts,
which had the jurisdiction to impose life imprisonment, even when the
minimum sentences were not involved. Had the trial court been a regional
court, the judgment in S v Ndlovu 2017 (2) SACR 305 (CC) is clear: without a
finding by the trial court that the murder had been planned and premeditated,
a regional court cannot establish the increased jurisdiction to impose life
imprisonment during the sentencing ”.
In my view, therefore the court a quo was entitled to impose a sentence of life
imprisonment . The question however remains whether this was an appropriate
sentence.
Whether the sentence imposed by the court a quo should stand
[39] It is trite that in an appeal aga inst sentence that the principle that should guide
the appeal court is that punishment is pre-eminently a matter for the discretion of the
trial court , and a court of appeal should be slow to interfere with such discretion.
Furthermore, that a court of appeal can only interfere with a sentence imposed by
the trial court under the following circumstances. Firstly, where there is a material
8 See paragraphs 78 and 79 Du Toit , De Jager , Paizes, Skeen and Van Der Merwe
9 Commentary on the Criminal Procedure Act at 28-18D Service Issue 70, 2023
misdirection by the trial court that vitiates the exercise of that discretion. Secondly,
where there is a disparity between the sentence that was imposed by the trial court
and that which the court of appeal would have imposed had it been the trial court , to
the extent that such a sentence can be characterized as shocking, startling or
disturbingly inappropri ate.
[40] In my view, the trial court made findings against the appellant in aggravation
of sentence that were not based on admissible evidence , like hearsay evidence,
when it found that the deceased was strangled and bitten by the appellant. No one
testified that they were witnesses to such conduct on the part of the appellant. The
only evidence that was placed before the court of this conduct was based on
inadmissible hearsay evidence which should in the first place never have been
admitted, other than in terms of the proper application of section 3 of the Law of
Evidence Amendment Act 45 of 1988.
[41] The appellant in any event denied these allegations and no signs of any
strangulation or biting were recorded on the postmortem report . It is true that t he
conduct of the appellant on the evening of 1 December 2018, was deplorable which
resulted in the cancellation of their social get together. But besides the evidence of
him pulling her arms and tightly holding her wrists , there is no other positive
evide nce of an assault on her. His main aim it seems on that evening was not to
assault her but to get hold of her cellular phone.
[42] The court a quo in my view was influenced by generalized extraneous factors
based on studies of the conduct in general of perpetrators and victims of gender -
based violence that was not borne out by the evidence regarding the behaviour of
the appellant and that of the deceased as a victim , and in my view unfairl y attributed
those factors to the appellant. There was no admissible evidence presented that the
appellant had a history of abusing the deceased.
[43] I agree with the submissions of counsel for the appellant that in the absence
of any other evidence , on the evidential material before the trial court, the only
reasonable inference to be drawn is that the offence was committed in the heat of
the moment. There is no evidence , as I pointed out earlier , that the appellant went to
visit the house where the dec eased was to hunt her down and kill her. Apart from
what happened on 1 December 2018 the only real and substantial evidence of
violence committed by him on the deceased is the brutal, cold-blooded and
abhorrent manner in which he killed the deceased. This repulsive conduct together
with his conduct on 1 December 2018 nonetheless does not justify the generalized
and unsubstantiated aggravating findings the court a quo made against him in
relation to the scourge of gender -based violence . By making these findings in
aggravation, the court a quo materially misdirected itself .
[44] I agree with the court a quo and my colleague, that for perpetrators of gender -
based violence who callously murder their intimate partners, a strong message
needs to be sent out that acts of gender -based violence are taken seriously by our
courts. Such a sentence should however not be disproportionate to the crime, the
offender and the interests of society. Sentencing is always an individualised
exercise.
[45] The appellant wa s a young man and was 19 years old when he committed the
offence. He was barely an adult at the time of the commission of the offence. If he
had committed the offence a year and a few months earlier (approximately 20
months) the provisions of the Child Ju stice Act 75 of 2008, and in particular s 77
thereof, would have applied. This is a strong factor that the trial court should have
taken into consideration. He is also a first offender and was never previously on the
wrong side of the law. He comes from a stable family. He completed matric and tried
to gain a post-matric qualification. He also was employed in various capacities from
a petrol attendant to a part time model. He had been in an intimate relationshi p with
the deceased for a long time. His abhorrent conduct appears to have been fuelled by
jealousy and possessiveness when the deceased rebuffed his attempts to reconcile
with her. This does not necessarily translate into an individual with a deep rooted,
irreversible, propensity for violence against women such as to place society at large
at risk, particularly given the absence of any evidence before the trial court to this
effect.
[46] Whilst he may not have been honest and upfront with the Vissers and the
police, he nonetheless went back to the scene the next day . He could have stayed
away . It is equally reasonable to infer from this conduct that he realized the
consequences of his actions which greatly concerned him , and he wanted to process
what he h ad done . He was sad and crying when he realised the consequences of his
actions. This was not the conduct of a totally heartless individual.
[47] In my view , there was an over -emphasis on ly on the offence that was
committed even if it was horrific and abhorrent. When imposing a sentence, the
court must strive to impose a balanced sentence and avoid imposing an exemplary
sentence. Just like an overemphasis on the crime is deprecated, a sentenc ing court
should guard against placing an overemphasis on the public interest and to appease
public opinion.
[48] In S v Maseko 1982 (1) SA 99 (A) at 102E -F the court held: ‘…What has to be
guarded against when exemplary sentences are imposed (concerning which see S v
Khulu 1975 (2) SA 518 (N) at 521 -2) is the danger that excessive devolution by a
judicial officer to furtherance of the cause of deterrence may so obscure other
relevant considerations as to result in very severe punishment of a particular
offender which is grossly disproportionate to his deserts. (See also S v
Christodoulou ; S v Savides ; S v Temple; S v Zwyssig 1979 (3) SA 523 (A) at 536E -
F.)’
[49] And in S v Khulu (at 521B -522C) the court held:
‘It is clear from the magistrate’s reasons in this case that he decided to
impose what I might call an exemplary sentence. He regarded it as “a need”
because of the tendency described by the witness called by him. The accused
was to be punished in such a way that the punishment would demonstrate to
those disposed to deal in dagga that youths would not necessarily induce a
court, because of their youth, to “avoid” the punishment described by Act 41
of 1971. In Smith and Logan, Criminal Law , 2nd ed., p. 12, Asquith L.J., is
reported to have said:
“Everyone has heard of an ‘exemplary’ sentence: and nearly
everyone agrees that at times such sentences are justified. But it is not
always observed that an exemplary sentence is unjust, and unjust to
the precise extent that it is exemplary. Assume a particular crime is
becoming dangerously frequent. In normal times the appropriate
sentence would be, say, two years. The Judge awards three; he
awards the third year entirely to deter others. This may be expedient; it
may even be imperative. But one thing it is not; it is not just. The guilt of
the man who commits a crime when it happens to be on the increase is
no greater than that of another man who commits the same crime
when it is on the w ane. The truth is that in such cases the Judge is not
administering strict justice but choosing the lesser of two practical evils.
He decides that a moderate injustice to the criminal is a lesser evil than
the consequences to the public of a further rise i n the crime -wave.”
It is implicit in the observations of the learned Lord Justice that an “exemplary”
sentence may be justified only where the injustice thereby done to the
individual is “moderate”; a degree of injustice in that sense may be a lesser
evil than the neglect of the broad interests of society which sometimes require
that severe sentences, possibly in excess of the true deserts of the offender in
the particular service circumstances of his case, should be imposed for
deterrent effect. But I cann ot conceive of any principle which could justify, for
the sake of deterrence, the imposition of a sentence grossly in excess of
what, in the circumstances of a particular case and having regard only to the
crime and the degree of the particular offender’s moral reprehensibility, would
be a just and fair punishment. This would be to lose sight of the fundamental
principle of sentencing;
“What has to be considered is the triad consisting of the crime, the
offender and the interests of society”. ( S. v. Zinn , 1969 (2) S.A. 537
(A.D.) at p. 540). This crisp but comprehensive dictum by Rumpff, J.A.
(now Chief Justice), has been quoted and applied times without
number. Some further observations made by the learned Judge of
Appeal in the course of his judgment some times appear, however, not
to be fully appreciated, to judge by cases which come up for review. It
should be remembered that the learned Judge of Appeal also pointed
out that the over -emphasis of one of the constituents of the triad and
the under -estimatio n of another constituted a misdirection and that it
was wrong to exaggerate “beyond permissible limits” the nature and
effect of the crime.
It is, I think, a truism that just as a court should not, in an excess of
compassion or pity, show a criminal convic ted of a serious and prevalent type
of crime undue leniency at the expense of the best interests of society, so it
should not by over -zealous protection of society denigrate the concepts of
justice and fairness in relation to the individual offender. That, when all has
been said, remains the true function of the court in any criminal case ---to do
justice to the State and to the man in the dock ---to acquit him if he is not guilty
but to convict him if he is guilty and then to sentence him, within the
framewo rk of the law, according to what is just and fair in all the
circumstances. Where it is not possible to reconcile with the need to protect
society a sentence which, having regard only to the crime and the offender,
appears to be appropriate, a court would disregard its duty and abuse its
powers if it did not ensure that the deviation from justice (in the sense of
imposing punishment more severe than the particular offender merited) was
no greater than was necessary in the public interest and that the senten ce,
though more severe than it would otherwise have been, was nevertheless not
unreasonable in all the circumstances.’
[50] Our country and society without a doubt suffers a scourge of gender -based
violence in the form of either rape or femicide and all other horrific forms of abuse
against women In S v SMM10 the following was said about this in the context of
deterrence and retribution in cases like these :
'Our country is plainly facing a crisis o f epidemic proportions in respect of
rape, particularly of young children . . . The public is rightly outraged by this
rampant scourge. There is consequently increasing pressure on our courts to
impose harsher sentences primarily, as far as the public is c oncerned, to
10 S v MM 2013 (2) SACR 292 (SCA) at [14]
exact retribution and to deter further criminal conduct. It is trite that retribution
is but one of the objectives of sentencing. It is also trite that in certain cases
retribution will play a more prominent role than the other sentencing
objectives. But one cannot only sentence to satisfy public demand for
revenge —the other sentencing objectives, including rehabilitation , can never
be discarded altogether, in order to attain a balanced, effective
sentence ’.(emphasis added)
[51] I endorse the sentiments expressed in this case. To impose a sentence of life
imprisonment on a young man with a clean track record and who is barely an adult
which means that he has to be removed from society for the rest of his life , induces a
sense of s hock and it is a disturbingly inappropriate. Such a sentence unduly places
an emphasis on the retributive aspects of punishment and pays scant regard to the
appellant’s prospect of rehabilitation. There is no evidence that the appellant cannot
be rehabilit ated and that he should therefore spend the rest of his life in prison. Not
even the expert witness on gender -based violence called by the State during the
sentencing proceedings suggested this. In fact she was cand id that she was simply
not qualified to c omment on rehabilitation programs available to sentenced prisoners
and whether there was no likelihood that the appellant could be rehabilitated.
[52] I am of the view that the interests of society, the seriousness of the offence as
well as the retributive and deterrent aspects of punishment can be satisfied by
imposing a sentence of long-term imprisonment other than a sentence of life
imprisonment. In the result , the following order is made :
1) The appeal against the sentences imposed on counts 1 and 2 is
dismissed.
2) The appeal against the sentence imposed on count 3 (Murder) is
upheld and replaced with the following sentence:
“That the accused is sentenc ed to Twenty -Five (25) years
imprisonment . The sentence s imposed on counts 1 and 2 shall run
concurrently with the sentence imposed on count 3. ”
3) The sentence on count 3 is antedated to 4 November 2022.
_________________________
R.C.A. HENNEY
JUDGE OF THE HIGH COURT
_________________________
J.I. CLOETE
JUDGE OF THE HIGH COURT
NZIWENI, J :
Introduction
[53] This is an appeal with leave from the trial court, agains t a sentence of life
imprisonment that was imposed upon the appellant after a conviction for
premeditated murder. The case was tried before Thulare J. The appellant, who was
legally represented, was convicted of (count one) assault with intent to do grievo us
bodily harm; (count two) theft; and (count three) murder. Although the convictions on
the three counts involved the same victim, they were committed on different
occasions and were only consolidated for trial purposes.
[54] It is common cause between the parties that the indictment expressly
indicated that the murder charge was read with the provisions of section 51 (2) of the
Criminal Law Amendment Act 105 of 1997 (“CLAA”) [in essence, the State invoked
the mandatory minimum term of imprisonment of 15 years for a first offender ]. It was
also common cause before the court a quo that facts alleged in the indictment did
not fall within the purview of section 51 (1) of the CLAA, as the indictment did not
expressly mention that the murder was committed with premeditation. Thus, the
appellant was not forewarned in the indictment about the possibility of such a finding
by the trial court.
[55] Notably, in respect of the murder charge, the trial court in its verdict made a
specific finding that the circumstances of the case established premeditation. In the
result, notwithstanding the fact that the State did not invoke the provision s of section
51 (1) of the CLAA, the appellant was sentenced to a term of life imprisonment in
terms of section 51 (1) of the CLAA.
[56] So far as the provisions of section 51 (1) are concerned, the appellant asserts
that it was incumbent on the State to specify the case to be met in such a way that
an accused person properly appreciates the charges against him and the
consequences thereof. The appellant further asserts that the trial court exercised its
discretion unreasonably by imposing life imprisonment. Accordingly, the appellant
asserts that the life imprisonment sentence is disproportionate to the relevant crime.
[57] Therefore, the centr al issue that falls to be considered in this appeal is
whether, in the circumstances, the trial court was correct to invoke the provisions of
section 51 (1) of the CLAA. And whether there were substantial and compelling
circumstances that warranted the trial court to deviate from the prescribed sentence.
[58] It is necessary to briefly recite the background and the circumstances of each
offence.
Events of 01 December 2018 to 04 December 2018
[59] The appellant was convicted mostly on the following facts. The deceased was
searching for her phone and it was found where the appellant was seated; the
appellant and the deceased went to the bedroom because of what was on the
deceased’s phone; the appellant had the deceased’s phone when they were in the
bedroom; the deceased never got her phone back; the appellant never handed the
deceased’s phone to her; that the friends of the deceased did not want the appellant
and the deceased to be in the same place; that the appellant was asked to leave the
house of the deceased. The appellant saw a message on the deceased’s phone,
kept her phone, assaulted her on 01 December 2018. Evidence shows that amongst
other things , he strangled her. He had to be taken away to the University of Western
Cape and the party the deceased was hosting had to be abruptly stopped because
of the actions of the appellant.
[60] On 02 December 2018, a police man who had been a neighbour of the
deceased, observed that she was fearful of the appellant, when she went to him to
seek advice about what to do concerning the events of 01December 2018.
[61] On the very same day [02 December 2018], the appellant went to the
deceased’s place of work, notwithstanding the fact that the deceased refused to see
him; he remained there . As a result, he had to be escorted out of the store where the
deceased worked.
[62] On 03 December 2018, the deceased related to a co-worker that the appellant
still had not returned her phone to her and that she was fearful of the appellant.
[63] On the evening of 03 December 2018, the appellant went to the deceased’s
place and an argument ensued inside the house. The altercation proceeded outside
and a neighbour is reported to have heard the deceased asking the appellant why he
was doing the things he was doing to her.
[64] When the altercation went back inside the house, the appellant stabbed the
deceased 11 times with a knife he had in his possession and left her to die.
[65] On 04 December 2018, the appellant contacted the police and acted as if he
discove red the body of the deceased, and that he did not know what had happened
to her.
The Law
[66] The question concerning failure to inform an accused person beforehand
regarding the applicability of the provisions of the CLAA imposed upon him or her;
or in an instance where the indictment incorrectly states an offence as one of
contravening s 51 (2) instead of s 51 (1) of the CLAA, have been the subject of
judicial scrutiny both in the Supreme Court of Appeal (“SCA”) and the Constitutional
Court.
[67] In this regard, the SCA has developed an established jurisprudence on this
issue. Thus, there is a long line of cases stemming from the SCA that state that
incorrect stating or not mentioning applicability of the CLAA, does not mean to say
that the sentencing court cannot impose a sentence that falls within the purview of
the applicable penalty regime. However, the SCA has repeatedly emphasised that
each case must be assessed on a case -by-case basis and in the light of its particular
circumstances.
[68] The SCA also stressed that emphasis must be at substance and not just at
form. The breadth of its [SCA] authority demonstrates that if an accused person was
not prejudiced in the defence of his case, the SCA will show reluctance in
overturning the result of a fair trial where there was no denial of accused's
constitutional rights.
[69] The SCA, for obvious reasons, eschews and is also quite wary to laying down
a general rule that the indictment or chargesheet must recite in every case either the
specific form of the scheduled offence with which the accused is charged, or the
facts the State intends to prove to establ ish it. In my view, it makes absolute sense
that our courts avoid rigidity and formalistic application of the law so as to elevate
form over substance. In essence, the SCA concluded that despite a flaw in the
indictment or chargesheet, the defect may be curable if it would not affect the
accused person’s fair trial. At this point, a detailed discussion of the SCA cases is
necessary.
[70] In S v Mashinini and Another 2012 (1) SACR 604 (SCA) (21 February 2012),
the appellants, who were legally represented were charged in the Regional Court,
with rape read with the provisions of s 51(2) of the CLAA. The accused pleaded
guilty to the charge. The accused were ‘convicted as charged’. Pursuant to the
conviction, the Regional Magistrate stopped the proceedings and referred the matter
to the High Court for sentencing.
[71] In the High Court, the indictment reflected that the accused were convicted of
an offence referred to section 51 (2) of the CLAA. During the sentencing
proceedings, no evidence was led in mitigation or aggra vation of sentence. The High
Court proceeded and sentenced the accused to life imprisonment. The accused
appealed their sentence to the SCA. The argument before the SCA, proceeded on
the footing that the sentencing judge acted incorrectly in sentencing the appellants to
life imprisonment in terms of section 51 (1) of CLAA, where the appellants were
convicted of rape read with the provisions of s 51(2) of the CLAA and whether the
sentence imposed rendered the trial unfair.
[72] The SCA found that there was a misdirection which vitiated the sentence.
According to the SCA, the misdirection stemmed from the fact that the appellants
were sentenced for an offence different from the one for which they were convicted .
As such, the SCA found that in the Mashinin i matter, there was absolutely no basis
for the matter to be referred to the High Court as the Regional Court Magistrate had
the necessary competence to sentence the appellants. The Mashinini matter, is
similar in some respects to the Constitutional Court case of S v Ndlovu 2017 (2)
SACR 305 (CC), where the Regional Court Magistrate, when sentencing the
appellant, made reference to the fact that the appellant was charged with Rape read
with section 51 (2) of the CLAA. And when the Regional Magistrate pronounced the
verdict, he stated that the appellant was found ‘guilty as charged.’ Based on that, the
Constitutional Court held that the magistrate’s statement that the accused was found
‘guilty as charged’, means that he was convicted of rape read with the provisions of
section 51 (2) and not an offence referred to part I of schedule 2.
[73] The questions presented by the Mashinin i case in the SCA and the Ndlovu
matters, are readily distinguishable from the present one because the trial court in
the instant case, before the conviction, specifically indicated in its judgment that it
had made a finding of premeditation, notwithstanding the failure of the State to
invoke the appropriate statutory penal provision under section 51 (1) of the CLAA.
[74] In S v Legoa [2002] 4 All SA 373 (SCA); 2003 (1) SACR 13 (SCA) (26
September 2002), the SCA dealt with two issues. The first one related to the
elements of the offence set out in the schedule of the CLAA. The second one dealt
with failure to warn an accuse d with the correct applicable penalty regime.
[75] In the Legoa matter, the SCA, through Cameron JA, stated the following at
para 20-21:
“Under the common law it was therefore ‘desirable ’ that the charge sheet should
set out the facts the State intended to prove in order to bring the accused within
an enhanced sentencing jurisdiction. It was not, however, essential . The
Constitutional Court has emphasised that under the new constitutional
dispensation, the criterion for a just criminal trial is ‘a concept of substantive
fairness which is not to be equated with what might have passed muster in our
criminal courts before the Constitution came into force’. The Bill of Rights
specifies that every accused has a right to a fair trial. This right, the
Constitutional Court has said, is broader than the specific rights set out in the
sub-sections of the Bill of Rights’ criminal trial provision. One of those specific
rights is ‘to be informed of the charge with sufficient detail to answer it’. What the
ability to ‘answer’ a charge encompasses this case does not require us to
determine. But under the constitutional dispensation it can certainly be no less
desirable than under the common law that the facts the State intends to prove to
increase sentencing jurisdiction under the 1997 statute should be clearly set out
in the charge sheet.
The matte r is however one of substance and not form, and I would be reluctant
to lay down a general rule that the charge must in every case recite either the
specific form of the scheduled offence with which the accused is charged, or the
facts the State intends to prove to establish it. A general requirement to this
effect, if applied with undue formalism, may create intolerable complexities in the
administration of justice and may be insufficiently heedful of the practical realities
under which charge sheets are frequently drawn up. The accused might in any
event acquire the requisite knowledge from particulars furnished to the charge
or, in a superior court, from the summary of substantial facts the State is obliged
to furnish. Whether the accused’s substantive fair trial right, including his ability
to answer the charge, has been impaired, will therefore depend on a vigilant
examination of the relevant circumstances .
The question thus remains whether the accused had a fair trial under the
substantive fairness protections afforded by the Constitution . In this regard, the
judgment of the Full Court of the Transvaal Provincial Division in S v Seleke ,
though delivered before the Constitution, remains instructive. The Full Court held
under the provisions of the Dangerous Weapons Act 71 of 1968 that although it
was desirable for the charge to contain reference to the penalty, this was not
essential, and its omission not irregular: the test was whether the accused had
had a fair trial (681-2). The Full Court observed (my translation from the
Afrikaans):
‘To ensure a fair trial it is advisable and desirable , highly desirable in the case of
an undefended accused , that the charge sheet should refer to the penalty
provision. In this way it is ensured that the accused is informed at the outset of
the trial, not only of the charge against him, but also of the State’s intention at
conviction and after compliance with specified requirements to ask that the
minimum sentence in question at least be imposed.’ (682H).
[24] . . . Although the legislature had not created new offences, it had to appear
at convict ion that elements in question were present. Botha J observed (I translate):
‘The words in my opinion convey the meaning that the facts that must be
present to make the minimum sentence compulsory must be established at
conviction in the sense that they must be included in the facts on which the
conviction is based.’
[76] While I readily accept that the circumstances of the case would more readily
lend themselves to the Legoa matter, however, the Legoa matter is distinguishable
from this matter merely because the evidence to enhance penalty jurisdiction was
led after a verdict on guilt. As already mentioned in paragraph three that, the finding
of premeditation in this matter was made before the verdict. Thus, the trial court
acted correctly in doing so.
[77] In S v Tshoga 2017 (1) SACR 420 (SCA), the matter was heard by a panel of
five judges, and it was a split judgment. The majority judgment is penned by
Schoeman AJA with Dambuza JA and Nicholls AJA concurring. In Tshoga , in
charging the appellant, the charge sheet only made mention of the fact that the
complainant that was raped was a 10 - year- old. There was no mention of the
provisions of the CLAA. The majority decision at paras 13-16; 20, 22 and 23 the
following is stated:
“[13] In dealing with the contents of the charge sheet and what should be
contained therein, and comparing the position pre- and post- Constitution, the
court found that the salient facts the State intended to prove in order to increase
sentencing jurisdiction under the Act ought to be clearly set out in the charge
sheet. But, the court continued, the matter was one of substance and not form
and as a result concluded that a requirement that every charge must set out
either the ‘specific form of the scheduled offence with which the accused is
charged, or the facts the State intends to prove to establish it, if applied with
undue formalism may be insufficiently heedful of the practical realities under
which charge sheet s are frequently drawn up.
[14] As stated above, a vigilant examination of the relevant circumstances is
necessary to determine whether an accused has had a fair trial. Thus, Legoa
pertinently required that the evidence, before conviction, should encompass all
the elements that bring it within the purview of s 51 of the Act and the increased
penal regime. It was not a requirement that the provisions of the Act should be
set out in the charge sheet, but the enquiry remained whether the accused had a
fair trial, which included his ability to answer the charge.
[15] Later in S v Mthembu this court (Ponnan JA and Petse AJA writing for a full
court) stated, with reference to Legoa and Ndlovu , that 'a fair trial enquiry does
not occur in vacuo, but . . . is first and foremost a fact-based enquiry' .
[16] In S v Ndlovu the issue whether a firearm was a semi -automatic weapon
was not mentioned in the charge sheet. The prosecutor did not lead evidence in
that regard and a police man, in response to a question by the magistrate,
casually mentioned that the firearm in question was a semi -automatic firearm,
without providing a basis for this conclusion. In setting aside the compulsory
sentence of 15 years’ imprisonment and substituti ng it with three years’
imprisonment, Mpati JA said:
‘The enquiry, therefore, is whether, on a vigilant examination of the relevant
circumstances, it can be said that an accused had had a fair trial. And I think it
is implicit in these observations that where the State intends to rely upon the
sentencing regime created by the Act a fair trial will generally demand that its
intention pertinently be brought to the attention of the accused at the outset of
the trial, if not in the charge sheet then in some other form , so that the
accused is placed in a position to appreciate properly in good time the charge
that he faces as well as its possible consequences . Whether, or in what
circumstances, it might suffice if it is brought to the attention of the accused
only during the course of the trial is not necessary to decide in the present
case. It is sufficient to say that what will at least be required is that the accused
be given sufficient notice of the State’s intention to enable him to conduct his
defence properly.’
[20] This court in Kolea thus digressed from the other cases that stated that
there had to be a vigilant examination (Legoa and Mashinin i); 'a fair trial enquiry
does not occur in vacuo, but . . . is first and foremost a fact-based enquiry'
(Mthembu ); that ‘[T]he enquiry, therefore, is whether, on a vigilant examination of
the relevant circumstances, it can be said that an accused had had a fair trial’;
and ‘. . . at least be required that the accused be given sufficient notice of the
State’s intention to enable him to conduct his defence properly (Ndlovu ). The
court however found, in Kolea , that the appellant had not been prejudiced. The
court considered the fact the appellant did not raise any prejudice in the conduct
of his trial due to the failure to refer to s 51(1) of the Act in the charge sheet in
the regional court. Nor was this an issue on two occasions in the high court on
sentencing and appeal. It was raised for the first time in this court. The court also
had regard to the fact that the State had, at the outset , made it clear that it
intended to rely on the Act in the charge sheet. It is this latter factor that
distinguishes Kolea from the instant matter: no reference to the Act was made in
the charge sheet.
[22] In Kolea the court was not saddled with, and it did not pronounce upon, what
the position would have been had the Act not been mentioned, as it had been
mentioned. Therefore, the pronouncement that the Act had to be mentioned in a
charge sheet at the outset of a trial was obiter dictum for it was not necessary for
the decision of this Court in determining whether or not there had been
prejudice. Since it decided that there was a reference to the Act, any discussion
as to what the position would have been had there been no reference to the Act,
‘could not advance the reasoning by which the decision was reached.’ It is also
clear that the discussion in Kolea as to the possibility of prejudice considered
that substance was of paramount importance and that form was secondary. I am
of the view that a pronouncement that the Act had to be mentioned in the charge
sheet or at the outset of the trial would be elevating form above substance.
Every case must be approached on its own facts and it is only after a diligent
examination of all the facts that it can be decided whether an accused had a fair
trial or not.
[23] The appellant in this matter had opportunities in five separate proceedings
to raise a complaint of possible prejudice in the proceedings: in the regional
court after conviction, during two sentencing procedures in the high court and
during two appeals to the full court. He failed to do so and only belatedly raised it
in this court. He was not ambushed as the charge sheet set out that he was
charged with the rape of a ten-year-old girl, [I thought this argument is related to
this case before you because you started the sentence with “The appellant in
this matter…” maybe you should say “The appellant in the Legoa…”] which
brought the offence within the ambit of s 51(1) of the Act as was required in
Legoa . He was convicted of the rape of a girl under 16 years, which is a
conviction that attracts the minimum sentencing regime in terms of the Act. He
had effective legal representation throughout the trial until his conviction and the
transfer to the high court. Furthermore, he was legally represented during both
sentenc ing proceedings in the high court and in both appeals to the full court.
There was no objection in the regional court after his conviction to the fact that
the matter was being transferred to the high court and to the prospect of life
imprisonment being imposed. He participated fully in the trial and pleaded not
guilty. He did not raise any prejudice prior to either of the two sentencing
procedures in the high court or raised it in either of the two appeals to the full
court. In both sentencing proceedings he knew the consequences of his
conviction, as the magistrate informed him that he faced life imprisonment, but
he chose not to testify during the sentencing procedures.” Footnotes omitted and
emphasis added.
[78] Again recently, the SCA has emphasised and recognised in the case of
Benedict Moagi Peloeole v The Director of Public Prosecutions , 2022 (2) SACR 349
(SCA); [2022] 4 All SA 1 (SCA) (16 August 2022), that the ultimate question remains
‘whether the accused had a fair trial under the substantive fairness protections
afforded by the Constitution’.
[79] From the aforegoing, it is evident that in a series of decisions beginning
almost two decades ago, the SCA has held the view that though it is desirable, it is
not essential that the facts the State intends to prove to increase sentencing
jurisdiction under the CLAA be clearly set out in the chargesheet or to warn an
accused with the correct applicable penalty regime. This then means that in such
circumstances, the correctness of the impugned sentence does not depend on the
form but on whether the accused person received a fair trial.
[80] Adopting the view of the SCA, I do not believe that the fact that the State
invoked an incorrect statutory penal provision is the deciding factor in this case.
Instead, as mentioned above, the answer to the question raised in paragraph five of
this judgment in turn depends upon the relevant circumstances of the case.
Premeditation
[81] Premeditation is an aggravating factor that falls within the statutory criteria set
out in section 51 (1) of the CLAA. To that end, the absence or presence of
premeditation is an important sentence feature.
[82] Dealing with the issue of premeditation, the question that arose during the
hearing of the appeal was whether the proven facts justified the inference that the
killing of the deceased was not a momentary flare up and whether the trial had
sufficient evidence to infer premeditation. In as much as cases that present direct
evidence showing a resolution to kill are rare, in most instances the resolve to kill is
inferred from the proven facts of each case including the behaviour of the accused
person at the critical time.
[83] For the State to prove premeditation it is not necessary to prove that an
accused person was in a certain mind set at a certain point before the commission of
the crime. The element of premeditation can be present even if the act of killing
happened quite fast. Premeditation does not take long to form in the mind of the
accused. Furthermore, there is nothing wrong with consideration of preceding events
as forming part of premeditation. In this matter, the State had wealth of evidentiary
foundation, to show premeditation. While the appellant may not have started out that
particular evening intending to kill the deceased, by the time he stabbed her 11 times
that was his intention.
[84] I have considered the submission that there was no evidence of premeditation
in relation to the murder. The violenc e meted upon the deceased is one of the
factors that point to the fact that the appellant premeditatedly set out to kill the
deceased. So far as this case is concerned, the facts clearly indicate that the attack
on the deceased was vicious and gruesome and involved use of a weapon. Judging
by the injuries that were sustained by the deceased, it is far more likely that a
substantial weapon was used to inflict a wound that measured 110 mm x 10mm and
to stab her through her clothing and into her stomach, kidney and lungs. The weapon
used does not suggest that it was a spontaneous pick of an object that happened to
be there by chance. The ferocity, extent and the nature of violence inflicted upon the
deceased was of the most severe kind. The ferocity of violenc e meted out on the
deceased suggest that the appellant was prepared for trouble and, judging by the
weapon, it is evident that the appellant was prepared to cause serious injury with it.
At least moderate force had to be used for the type of injuries that were sustained by
the deceased. This was a deliberate, callous and calculated killing.
[85] The injuries were inflicted in the most vulnerable area of the body. The
persistent stabbing was inflicted with the clearest possible intention to kill and the
injurie s inflicted upon the deceased do not point to spontaneity. If there was one or
three stab wounds, perhaps it could be said that the stabbing of the deceased was
an impulsive act taken in a sudden moment of rage. The appellant continued
stabbing the decease d 11 times. By all accounts, committed over an extended
period of time.
[86] Moreover, the actions of the appellant show that he was determined and
resolved to complete his murderous intent. The injuries depicted in the pathologist’s
report evince the amount of rage exhibited on the deceased. As such, this
demonstrates that the attack on the deceased was cold-blooded and without mercy.
[87] On top of that or perhaps more importantly, the evidence also reveals that the
appellant had stabbed the deceased in such a way that she was incapacitated to
seek help, that was also a significant factor to take into account when assessing
whether the appellant had the requisite intention and whether the killing was
premeditated. Given the nature of the injuries sustained by the deceased, it is
apparent that at the time the appellant intended to kill her, and not merely to
seriously hurt her.
[88] Furthermore, on his own version the appellant’s evidence evinces that after
he had stabbed the deceased, the deceased was in a perilous state. It is not the
evidence of the appellant that when he left the deceased, she was already dead or
was standing on her own. He knew that the deceased was in immediate danger of
losing her life.
[89] Given the infliction of clearly serious injuries upon the deceased that
obviously rendered her immobile; helpless; unable to raise alarm; bleeding and more
so without any phone. In the circumstances, surely before the appellant left the
premises, at this point he must have stopped and thought about the clearly
precarious state of the immobilised deceased; and then resolved that he was going
to leave the deceased to die from the serious injuries that he had just inflicted on her.
The appellant callously abandoned the seriously injured deceased alone and during
the night while she was dying. As such, the deceased bled from her injuries.
[90] It is perhaps, at this point, appropriate to set out the injuries that were inflicted
to the deceased by the appellant: The deceased’s body exhibited the following
wounds:
1. she had an incised wound to the right side of her skull.. The wound
extended to the thickness of the scalp and measured approximately 110 x
10mm.
2. About 200 millimetres to the left posterior midline a further sharp force
stab wound measuring 22 mm x 11 mm was noted on the left side of the
thoracic part of the back. The wound track continued to the third intercostal
space, perforating the upper lobe of the lung and the aortic arch.
3. An inverted “V” shaped incise wound on the left side of the occipital
part of the scalp posterior of the left earlobe, measuring 25 mm x 3mm and 20
mm x 2mm.
4. She also had a sharp stab wound to the left side of the abdomen that
measured 20 mm x 7mm and penetrated the lobe of the liver. The track of the
wound perforated the muscle of the abdomen, the left kidney and the aorta
inferior to the renal vessels.
5. A stab wound to the left side of the thoracic part of the back which
measured 40mm x 11mm. The wound was located 180 mm to the left posterior
midline.
6. Another stab wound measuring 13mm x 7mm was noted to the lateral
aspect of the left side of the back. The track of the wound perforated the
underlying intercostal muscles.
7. An incised wound measuring 17mm x 3mm on the right side of the
thoracic part of the back superiority.
8. Another incised wound measuring 18 mm x 3mm was noted to the
right side of the thoracic part of the back.
9. A small stab wound measuring 4 mm x 3mm on the left side of the
abdomen.
10. Another stab wound measuring 15 mm x 6mm, on the left upper arm,
perforating the muscles of the left upper arm.
11. A large stab wound measuring 30mm x 18mm on the lateral aspect of
the left upper arm.
12. There were abrasions to her right elbow posterior, on the right and the
left breasts. There were also abrasions to the third finger on the right hand.
[91] As regards the appellant deciding to leave the deceased in the position she
was in and with those injuries that he had inflicted, that proved a moment of calm
reflection about him deciding to seal the deceased’s fate. It is important in this
context to bear in mind that by leaving the deceased alone in the state she was in,
he knew of the grave danger which he placed the life of the deceased in. She did not
give her an opportunity to survive. He knew of the deceased’s vulnerability state due
to the injurie s that he had inflicted.
[92] At the cost of repetition, of more significance is the fact that the appellant took
a deliberate step to seal the fate of the deceased. He took no steps to obtain
assistance. It is quite clear in my mind that in such circumstances, the appellant was
able to think and appreciate the obvious inevitable consequences of his action. It is
thus an inescapable inference that the appellant had at least made preparation for
the death of the deceased by seriously injuring her and then living her alone to die.
This in my mind shows the murder of the deceased was not an opportunistic crime
but premeditated.
[93] Furthermore, in order to prove premeditation, the State also does not need to
show that the weapon used was organised at a certain time before the crime was
committed. In this case, the weapon used to attack the deceased was never
discovered. The evidence also reveals that owners of the house where the deceased
was murdered did not miss a knife.
[94] It would appear therefore, that from the afore going evidence, it is evident that
there were sufficient proven objective facts that make it irresistible to infer and justify
a finding of premeditation and intentional killing. Consequently, the only inference
possible from the proven facts of this case is that the killing of the deceased was
committed with premeditation.
[95] Thus , I do not accept that in the present case there was any error on the part
of the trial judge in finding an element of premeditation. In this matter, there was
sufficient evidence to justify a finding of premeditation.
Fair trial
[96] It is central to the principle of fair trial that the Constitution of the Republic of
South Africa Act,1996 “the Constitution”, is the supreme statute of the Land. The
Constitution embodies and safeguards the fundamental right to fair trial. In terms of
section 35 (3) of the Constitution, the right to fair trial includes the right to be
informed of the charge with sufficient detail to answer it. The record reflects that the
appellant understood the charge he was facing. He understood the allegations
levelled against him by the State. The appellant stated that he understood the
charge against him. It was never asserted during the trial proceedings that the
appellant did not understand the nature of the charges he was facing.
[97] The question that aptly arises is whether the appellant was aware of the direct
consequences of the charges he faced, notwithstanding the fact that the indictment
did not indicate that count three was read with the provisions of section 51 (1) of the
CLAA.
[98] Despite the flaw in the indictment, however, it is easy to conclude that the flaw
was in fact cured by a wealth of evidence that plainly indicated that there was an
element of premeditation in this case.
[99] As far as this case is concerned, just by looking at the facts of this matter it
becomes evident that the actions of the appellant were egregious. Certainly, one
does not need a statute to be aware of that. That together with the fact that the
appellant was arraigned in the High Court, plainly indicates that life imprisonment
was a reality that was facing the appellant if convicted. This conclusion is buttressed
by the SCA decision in Tshoga supra. Furthermore, there is nothing to suggest that
the appellant would have handled his defence any differently had he been made
aware in the indictment that he was facing life imprisonment and an allegation of
premeditation. Importantly, even the appellant does not claim that. In the
circumstances of this case, it cannot be said that the appellant was deprived of a fair
trial guaranteed to him by the Constitution .
Substantial and compelling circumstances
[100] The brutal stabbing of the deceased was entirely unnecessary. The words to
describe the horrific nature of this crime are insufficient. It need hardly to be pointed
out that this particular case is gruesome. The events of 01 December 2018, to 03
December 2018 point in one direction. They reveal a sinister pattern of physical
abuse and control. Clearly the evidence here reveals that the incident of the 03
December 2018 was not a random event. Particularly, in light of what happened in
the days leading to the incident of 03 December 2018.
[101] The actions of killing the deceased, who was defenceless, were particularly
bloody, brutal and indicative of wanton cruelty and impunity. The courts cannot allow
impunity for serious crimes.
[102] Our country has an epidemic of violence against women. This matter involves
a gender -related offence. The deceased was intentionally killed by someone who
was closely related to her. Hence, the appellant’s actions are a form of femicide.
Despite efforts by courts to address the continuing scourge of femicide; this type of
offence remains prevalent. The prevalence of femicide cannot be ignored in
sentencing proceedings. Sentences imposed by courts are one of the measures
used in an effort to deter and preve nt gender -based violence. There is therefore a
need for deterrent sentences.
[103] It is not fanciful to think that the deceased suffered significant mental and
physical trauma before her untimely death. The deceased was alive at the time of
stabbing as indicat ed by her defensive wounds. The deceased’s killing was
committed with intense violence. The photographs of the scene depict a scene of
gruesome violence. The deceased lost her life under terrible and unnecessary
circumstances. It is frightening to know that another person can do this to another
human being, particularly to a woman.
Youthful offender
[104] The appellant was 19 years old at the time of conviction and sentence. Our
law treats young offenders aged 19 as adults. However, it is a fact that they are
youthful offenders. It is thus in the interest of the community that a youthful offender
should be afforded a second chance for a fresh start. Equally, it is in the interest of
society that with youthful offenders the aim should always be rehabilitation. There is
no question about this. However, a youthful offender should be deserving of the
benefit of a second chance. It is paramount that the circumstances of each case
must demonstrate that the youthful offender is not incorrigible but eligible to
rehabilitation. The question that aptly arises in this case is whether the appellant’s
age ought to have operated in his favour.
[105] It is, of course, the case that the appellant’s age makes him a relatively young
person.
[106] Insofar as the age of the appellant there was no evidence led to show that the
appellant was an immature 19-year-old. There was nothing that could have reduced
his moral blameworthiness. Instead, the appellant had demonstrated himself as
someone who is callous and ruthless, who does not hesitate to unleash extreme
violence on a woman. In fact, the deceased’s suffering did not stop the appellant or
make him get help.
[107] Furthermore, the events from 01 December to 04 December demonstrate the
appellant as someone who always gets what he wants and gets away with it. The
appellant showed no regard for the sanctity of human life. To stab a woman in that
fashion and leave her to bleed to death, by almost any measure, was atrocious. In
my mind, it is aggravating that this offence occurred within the deceased’s ‘place’
and involved a gross abuse of trust and the worst kind of betrayal. What the
appellant did is a socially reprehensible act.
[108] The sign of repentance is the desire to help fix the harm one has caused. For
remorse, there must be some kind of accountability and respon sibility. In the present
case, the appellant has not admitted responsibility for the offences. It is also
aggravating that the appellant after committing the brutal offence, was unrepentant
and tried to cover his track s by attempting to mislead the police. He has shown no
remorse for what happened, and he continued to lie. During the trial, instead of
taking responsibility, he blamed the victim. Blaming her own murder on her.
Certainly, the actions of the appellant do not exhibit immaturity. In S v Dlamini 1991
(2) SACR 655 (A), it was stated that the youthfulness of an offender will invariably be
a mitigating factor, unless it appears that the viciousness of his or her deeds rules
out immaturity. See also S v Matyityi 2011 (1) SACR 40 (SCA) at paragraph 14.
[109] The appellant's premeditation and lack of remorse were also aggravating
features. There was absolutely no iota of self-reproach. In my mind the chilling act of
remorse reflects lack of accountability and shows that the appellant was not willing to
admit his wrongdoing.
[110] Hence, it is difficult to believe that the appellant would be reluctant to reoffend.
The type of criminal who has committed such a brazen crime is capable of the worst.
I agree with the responden t’s counsel that the fact that the appellant comes from a
decent and caring background makes the situation all the more worrying. In my view,
that is clearly so when regard is had to the fact that there was no remorse.
-
[111] The only mitigating factors in favour of the appellant’s are his age coupled
with the fact that he is a first offender. That said, however, in the circumstances of
this case, the appellant’s age cannot, in my firm view, lower the degree of culpability
he bears for this grave crime he has comm itted. It is striking that the appellant’s first
offence involves significant aggravating factors and is one of high culpability.
Additionally, there is nothing to show that the appellant has a good potential to be
rehabilitated within the community.
[112] It is important to keep in mind that, after everything the appellant did to the
deceased, he left her lying alone on the ground bleeding to death from the stab
wounds as if her life counted for nothing . The pathologist testified that the deceased
lost a lot of blood and as a result her organs were pale. There was no hint of
contrition. It may be so that the appellant did something out of character. However,
he has also shown himself to be capable of a diabolical behaviour.
[113] No amount of sentence would be enoug h to make up for what the appellant
did. Any sentence other than life will depreciate the seriousness of the offence
committed by the appellant. I am therefore of the view that if the trial court did not
give a life sentence for this type of case, then it would be difficult to imagine the kind
of perpetrator deserving of such sentence. Certainly, the sentence imposed should
not demonstrate a lack of comprehension of the magnitude and severity of the crime.
Undoubtedly, the aggravating circumstances should be reflected in the sentence
imposed.
[114] The next question which arises concerns whether substantial and compelling
circumstances exist that warrants departure from the sentence of life. In the
circumstances of this case, the age of the appellant and the fact that the appellant is
a first offender were not sufficient to constitute substantial and compelling
circumstances. These two mitigating factors are overshadowed by the serious
impact of the offence. Thus, the appellant’s personal circumstances pale in
comparison to the gravity of the offence.
Conclusion
[115] This court should not overturn the decision merely on the ground that this
court would have reached a different one. It must be persuaded that the sentencing
decision involved an error of principle or was outside the range of conclusions which
were properly open to the sentencing judge.
[116] In the result, I would have made the following order:
Appeal is dismissed
_________________________
C.N. NZIWENI
JUDGE OF THE HIGH COURT
Counsel for Appellant : Adv. Leandra N. Adams
Instructed by : Legal Aid South Africa
Counsel for Respondent : Adv. Pulane A. Thaiteng
Instructed by : The Office of the Director of Public Prosecutions