S v Kgafela (429/2002) [2003] ZASCA 53 (28 May 2003)

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[2003] ZASCA 53
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S v Kgafela (429/2002) [2003] ZASCA 53; 2003 (5) SA 339 (SCA); 2003 (2) SACR 176 (SCA) (28 May 2003)

THE SUPREME COURT OF APPEAL OF SOUTH
AFRICA
Case No 429/2002
REPORTABLE
In
the matter between
Reginah Gwendoline Kgafela
Appellant
and
The State

Respondent
Before: Schutz, Mthiyane JJA and
Shongwe AJA
Heard: 21 May 2003
Delivered: 28 May 2003
Life
sentence – substantial and compelling circumstances – not for a
trial court to grant leave in order that SCA may reconsider
its
earlier decision – in this instance
S v Malgas
– such
circumstances absent – life imprisonment confirmed.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
SCHUTZ
JA
[1]
The appellant was sentenced to life
imprisonment for the murder of her husband. Sitting in the
Bophuthatswana Provincial Division,
Friedman JP held that there were
no ‘substantial and compelling circumstances’ present, that is in
the sense of
s 51(3)(a)
of the
Criminal Law Amendment Act 105 of
1997
. That being so, Friedman JP held, in the light of the decision
in
S v Malgas
2001 (2) SA 1222
(SCA) as later approved in
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) at 404I-405E para [40], that he was
obliged to impose a life sentence.
[2] But when he granted leave to appeal to this court,
after setting out a full review of the general sentencing rules (see
S v Kgafela
2001 (2) SACR 207
(B) at 210(g)-213F para [13]),
he felt ‘impelled to venture’ that this court might welcome the
opportunity to revisit the decision
in
Malgas
in order to give
more definition or formulation to the phrase ‘substantial and
compelling circumstances’ and to reverse the order
of the enquiry.
By this last he intended that the court should commence with the
conventional enquiry as to what is the appropriate
sentence and only
thereafter proceed to the prescribed minimum sentence. Whatever one
might think of the desirability of the law
being as it is suggested
it should be, the suggestion is contrary to the terms of the statute
and the interpretative decisions in
Malgas
and
Dodo
.
Marais JA expressly said in
Malgas
(at 1234C-D para [20])
that:
‘It would be an impossible task to
attempt to catalogue exhaustively either those circumstances or
combinations of circumstances
which would rank as substantial and
compelling or those which could not.’
I agree entirely.
[3] Notwithstanding, Friedman JP said in his judgment
granting leave:
‘In my view, although I think with
modesty that my judgment is correct, nevertheless there is a dispute
on it. I have stated in
the judgment that although I am bound by the
decision of the Appellate Division I still believe that the terms
substantial and compelling
circumstances should be defined and in the
circumstances and in the interests of law I will grant leave to
appeal.’
This is an approach to granting leave that cannot be
accepted. Whilst being of the view that his judgment was correct,
Friedman JP
considered that this court should be given the
opportunity of mending its earlier judgment. In
Cassell and Co Ltd
v Broome and Another
[1972] AC 1027
the House of Lords observed
that in granting leave to appeal the Court of Appeal (headed by Lord
Denning MR) had expressed the opinion
that a previous decision of the
House had been made
per incuriam
, or was in any event wrong,
or was ‘unworkable’. The suggestion was that the House might wish
to set matters aright. This suggestion
earned the following rebuke –
per Lord Hailsham at 1054E:
‘The fact is, and I hope it will never be
necessary to say so again, that, in the hierarchical system of courts
which exists in
this country, it is necessary for each lower tier,
including the Court of Appeal, to accept loyally the decisions of the
higher tiers.
Where decisions manifestly conflict, the decision in
Young v Bristol Aeroplane Co Ltd
[1944] KB 718
offers guidance
to each tier in matters affecting its own decisions. It does not
entitle it to question considered decisions in the
upper tiers with
the same freedom.’
[4] But, leave having been granted, there is an appeal
before us. The facts are set out in the reported decision
a quo
referred to above. Was Friedman JP correct in finding that
substantial and compelling circumstances were not present? In
deciding
this question one must have regard to the totality of the
circumstances.
[5] First, the threshold requirement set out in
s 51(1)
and
Part 1
of Schedule 2, that the murder was ‘planned or
premeditated’, was clearly satisfied. On her own version the
instruction
to kill was given some seven weeks before the shooting
which took place on the evening of 5 December 1999. According to the
appellant
she did not know quite when her husband was to be killed,
but she knew that the assassin that she had engaged would observe his
habits
and kill him outside his home. That is what happened.
Throughout it was open to the appellant to call off the assassin. She
did not
do so and there is no real attempt to explain why she did
not.
[6] But the matter is even worse than that. The person
ultimately engaged to arrange the murder was one Tsholo. He was
engaged in
mid-October 1999. However, there had been an earlier
approach in August 1999 – to one Ronald Sentsho – a relative of
hers if
not ‘that close’. The court
a quo
accepted his
evidence, and although she denies it, she could advance no reason why
he should have fabricated so damaging a story
against her. On his
version she emerges as a Lady Macbeth. She asked him whether he could
‘remove the deceased from her eyes’.
He was frightened and said
he could think it over. After discussing the matter with his
girlfriend he refused her request. At this
she was angry and said
that he had wasted her time.
A serious aggravating factor, often recognised as such
by our courts, is that the appellant made use of a hired killer –
on her
evidence the agreed fee was R10 000.
[7] Dr. Labuschagne, a criminologist, gave evidence on
her behalf. She painted a picture of a woman rejected throughout her
life.
Her mother had died three days after her birth and her
biological father thereafter paid her scant attention. She was
brought up
in the home of her uncle, Victor Setshele. It was a
strict, religious home. She fared well at school and later at
university, where
she gained a MA degree and was well on her way to a
doctorate. It is evident, overall, that she is an intelligent woman,
but, as
she said ‘… unfortunately feelings do not go with
intelligence’. She felt privileged to have married a man who rose
to become
a senior magistrate. But gradually she felt that he was
withdrawing from her life. Increasingly he drank to excess over the
weekends.
When under the influence of liquor he would on occasion
abuse her and even assault her, to the extent of at least once using
a sjambok,
and on another, of pointing a firearm at her. On this
latter occasion she went to the police station. Two policemen
attended at her
home, where they spoke to her husband. He denied her
allegations. She was asked if she wished to lay a charge but she
declined to
do so. At times he would boast to her that because of his
position he was immune from arrest and prosecution. Increasingly he
would
absent himself over weekends and she suspected him of
infidelity (of which he once accused her also).
[8] Another thing that troubled her was the barrenness
of the marriage. As is so common, the finger was pointed at her, as
the woman.
In her Tswana custom this was a serious thing. She
consulted three gynaecologists who could find nothing wrong with her,
but when
she took the matter up with her husband he did not respond.
So the perceived stigma remained attached to her.
[9] The State sought to counter this picture, painting
the deceased as a gentle creature who would not harm a fly. But I am
ready
to accept the broad picture of alienation and rejection
described by the appellant, as the court
a quo
did.
However, hers is not a case of a wife driven to desperation and
seeing no other solution such as divorce. She was intelligent
and
well educated and capable of fending for herself. Nor was the murder
a reaction to a recent assault. It was planned over a long
period
when there was ample time to repent. But the brutal plan went
remorselessly forward.
[10] When one tries to ascertain why she chose murder
one gropes through her evidence largely in vain. The nearest one
comes to a
reason is in the following passage:
‘You said you were terrified of losing him. Is
that right? --- That is right.
But if he’s killed you lose him for good. Isn’t that so? --- In
fact that was what came to me – I didn’t want to lose him
for
anybody. I loved him.
I see. So in other words, if you couldn’t have him, nobody could
have him. --- That was what was in my mind.
That was in your mind. --- Yes Your Worship.
So the best way out of it was to kill him. --- That is the decision I
took.’
Let this evidence speak for itself.
[11] One asks whether there is not some other,
unrevealed, explanation. One possibility is that she decided to take
revenge on the
deceased for his divorcing her. The divorce and her
alleged ignorance of it is an extraordinary episode. A divorce
summons was served
on her (although she denies it) during August
1999, which is the month in which she approached Ronald Sentsho with
the request that
he kill her husband. The latter was in hospital from
5 December 1999, when he was shot, to 3 January 2000, when he died.
Yet, according
to the appellant she learned of the fact of her
divorce for the first time only a few days before his death. The
court
a quo
rejected her evidence on this score and in my
opinion correctly so.
[12] There is one clear mitigating factor – that she
was a first offender at the age of 37. That is about all. She
professes remorse
and Dr Labuschagne claims that she shows it. But it
took a criminal trial to extract it. She claimed to be innocent up to
and including
the stage when she applied for bail. Eventually she did
plead guilty, but there is no evidence that she did so in order to
make a
clean breast of it, rather than because she knew that the
State had an unanswerable case against her. There is another factor
relevant
to remorse. By now knowing that she had been divorced (even
on her own version), she became engaged in a burial dispute with the
deceased’s 79 year old, grieving mother. The appellant insisted
that she was entitled to take an active part in the funeral
arrangements
causing the mother to go to court. The appellant’s
answering affidavit in that matter reveals her thinking. Her plan was
to have
the decree of divorce set aside so that she might become the
deceased’s intestate heir as his reinstated wife.
[13] Two other matters are raised as reflecting remorse.
She attended the deceased closely in hospital during the last month
of his
life. She also borrowed a large sum of money in order to
ensure that he remained in a good hospital. In order to avoid
suspicion
she had to behave in this way, so that the submission that
these actions demonstrate remorse becomes of dubious worth.
[14] Taking together the many aggravating feature that
there are and such little mitigation as there is, I am not able to
conclude
that there are substantial and compelling circumstances
which justify life imprisonment not being imposed.
[15] The appeal is dismissed.
_____________
W P SCHUTZ
JUDGE OF APPEAL
CONCUR
MTHIYANE
JA
SHONGWE
AJA