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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

 

Reportable / Not reportable

 

Appeal number: 40/2024

 

In the matter between
TSHEDISO MARIUS LETUMA	APPLICANT
and
THE STATE	RESPONDENT

 

Coram:                   Greyvenstein AJ

Heard:               15 November 2024

Delivered:              17 March 2025

 

ORDER

 

The application for leave to appeal, on both the merits and the sentence, is dismissed.

 

JUDGMENT

 

Greyvenstein AJ

[1]      The applicant was convicted in the Welkom Circuit Court on the 18 October 2024 on Count 2 – Assault (Common) and Count 3 – Murder. He was sentenced on Count 2 to 12 months’ direct imprisonment and on Count 3 to 15 years’ direct imprisonment. The sentence in Count 2 was ordered to run concurrently with the one imposed in Count 3. This is an application by the applicant for leave to appeal on both the conviction and sentence.

 

The Legal position.

[2]      Leach JA, the scribe of a unanimous court, stated the following in S v Kruger:[1]

 

‘[2]       Before dealing with the merits of the appeal, it is necessary at the outset to deal with the test applied by the high court in granting leave to appeal to this court. Despite dismissing the appellant’s appeal, the high court concluded that it was “possible” that another court might arrive at a different conclusion and that leave to appeal should not be “lightly refused” where the person concerned is facing a lengthy sentence of imprisonment. This is an incorrect test. What has to be considered in deciding whether leave to appeal should be granted is whether there is a reasonable prospect of success. And in that regard, more is required than the mere “possibility” that another court might arrive at a different conclusion, no matter how severe the sentence that the applicant is facing. As was stressed by this court in S v Smith   2012 (1) SACR 567 (SCA) para 7:

 

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

 

[3] The time of this court is valuable and should be used to hear appeals that are truly deserving of its attention. It is in the interests of the administration of justice that the test set out above should be scrupulously followed. In the present case, it was not, and this court has had to hear an appeal in respect of which there was no reasonable prospect of success.’

(Emphasis added.)

 

[3]      Naidoo J, in Tsolo v S,[2] stated the position as follows in paras 6 and 7:

 

‘The test applicable to an application for leave to appeal was correctly set out in the Heads of Argument on behalf of the applicant, with which the state agreed. For the sake of completeness, I repeat the legal position as it currently stands. Section 17 of the Superior Courts Act 10 of 2013 regulates the test to be applied in an application for leave to appeal. The relevant provisions of section 17(1) provide as follows:

 

"(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that.

 

(a)        (i) the appeal would have a reasonable prospect of success; or

 

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;" (my emphasis and underlining)

 

[7] It has been held in a number of cases that an applicant was, previously, merely required to show that there is a reasonable possibility that another court, differently constituted, would find differently to the court against whose judgment leave to appeal is sought. It is clear from section 17(1), set out above, that the situation is now somewhat different, and an applicant for leave to appeal is required to convince the court that there is a reasonable prospect of success and not merely a possibility of success.

 

[See in this regard The Mont Chevaux Trust v Tina Goosen + 18 2014 JDR LCC, which was cited with approval in a number of cases, such as Matoto v Free State Gambling and Liquor Authority (4629/2015) [2017] ZAFSHC 80 (8 June 2017), a decision emanating from this Division, and also a Full Court decision in Acting National Director of Public Prosecutions and Others v Democratic Alliance (19577/2009) [2016] ZAGPPHC 489 (24 June 2016)]’

 

[4]      In Mekgoe v S,[3] Daffue J, with Naidoo J concurring, referred to a court’s obligation to observe the principle of stare decisis, or, the doctrine of precedents, as discussed by the Supreme Court of Appeal in paras 21 and 22 of First Rand Bank v Kona and Another.[4] Paragraph 22 is of particular importance:

 

‘The Constitutional Court, in Camps Bay Ratepayers and Residents Association & another v Harrison & another 2011 (4) SA 42 (CC), paras 28-30, expressed itself in no uncertain terms about observance by courts of the maxim stare decisis or the doctrine of precedent. Brand AJ, in delivering the unanimous judgment of the court said:

 

“Considerations underlying the doctrine were formulated by Hahlo & Kahn [Hahlo & Kahn The South African Legal System and its Background (Juta), Cape Town 1968) at 214-15]. What it boils down to according to the authors, is: “(C)ertainty, predictability, reliability, equality, uniformity, convenience: These are the principal advantages to be gained by a legal system from the principle of stare decisis.” Observance of the doctrine has been insisted upon, both by this court and by the Supreme Court of Appeal. And I believe rightly so. The doctrine of precedent not only binds lower courts, but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos.”’

 

[5]      It is therefore a clear guidance to all courts to follow the maxim of stare decisis. For me, a stricter approach is needed than just a reasonable prospect of success.  In this regard, I note what was said by Daffue J in S v Sello.[5]

 

‘On 26 August 2022 the applicant was convicted in the regional court, Welkom on a charge of murder. On 2 September 2022 he was sentenced to 15 years’ imprisonment. The honourable regional magistrate dismissed his application for leave to appeal the conviction and sentence. The applicant sought leave to appeal from this court. On 27 January 2023 two judges of this division granted him leave to appeal in respect of his conviction and sentence. There is no guarantee that the appeal will succeed, but reasonable prospects of success on appeal have been found.’[6] (Emphasis added.)

 

[6]      This was my first matter of its kind in the High Court. I was, unfortunately, not aware that the Application must be decided in chambers. This was only explained to me in February 2025 by Mr Van Vuuren. In the rough and tumble of a regional Court role, where I am in court on a daily basis, I have opened my first judgement document on the 14^{th of} February 2025. I was forced to do all the research at home because no internet or Wi-Fi system is working at the Magistrate Court. I am always trying to finish off work as quick as possible. I regret the unfortunate delay.

 

The application on leave to appeal on the merits.

[7]      The applicant is of the opinion that the trial court erred in convicting the him on a charge of murder with direct intent, and that there are prospects of success in his application. This prospect is based on the following summarised grounds:

 

1.               Not considering the totality of the evidence which was led during trial.

2.               Not considering the contradictions in the State witnesses’ evidence.

3.               That the evidence of Itumeleng Lenka was riddled with exaggerations and fabrications and that she was under the influence of liquor that day.

4.               That the trial court failed in the finding that the applicant has made an admission to the police and that the evidence of the applicants uncle did not support the mentioned notion.

5.               That the trial court erred in convicting the applicant on murder in the form of direct intent.

 

[8]      The State, as respondent in this matter, is opposing this application. It is the submission of the State that the Court has given ‘a full and detailed judgment pertaining to all the grounds that the appellant has raised in this application’. According to the respondent more is needed than just a possibility of success and it is their submission that ‘the appellant did not cross that hurdle’.

 

[9]      With regards to the above, I believe that the conviction of the applicant on count 3 – Murder, as a Part 2 Schedule 2 offence in terms of the Criminal Law Amendment Act 105 of 1997 (the Act), is correct. Every aspect raised by the respondent was covered in my comprehensive judgement. The application on merit is therefore dismissed.

The application on leave to appeal on sentence.

[10]    With regards to the sentence, the applicant is of the opinion, as far as the 15 years’ imprisonment is concerned, that the court has erred in not finding that there were substantial and compelling circumstances present to deviate from the prescribed minimum sentence for a Part 2 Schedule 2 matter in terms of the Act. Furthermore, the applicant maintains that the court also erred by not taking the following specifics into account:

 

1.               That he was twenty-nine years old at the time of the commission of the offence;

2.               That he has been in custody for approximately two years awaiting trial;

3.               That he has two children, aged 9 and 4 respectively, in need of a father-figure in their lives. (I place emphasise on this aspect.)

4.               That the mothers of his children are unemployed, and that he was the sole provider of these children prior to his arrest;

5.               That liquor played a role in the commission of the offence.

6.               That he could be rehabilitated.

7.               That the acted in the spur of the moment in an argument with the deceased over money to buy liquor and a cellular phone.

 

[11]    The applicant submitted that these circumstances, individually and cumulatively, constitute substantial and compelling circumstances which should have been taken into consideration by the court when the sentence was imposed. Further,  he submitted that the court over-emphasized the seriousness of the offence, the interests of the community and the deterrent effect, and not giving any due consideration to the factors in his favour. In addition, he was of the view that the court ‘was angered by the manner in which the offence was committed, as well as the fact that it was committed against a woman, a vulnerable person, in the Women's month.’ Therefore, with regards to the sentence imposed, the applicant is of the view that there may be prospects of success in his application.

 

[12]    The State, as respondent in this matter, naturally opposed this application. It is the submission of the State that the court took in consideration the personal circumstances of the applicant, the interest of the community as well as the seriousness of the offence. The court also took into consideration the age of the applicant and the fact that he has two children, each residing with their mothers. The trial court also took into consideration the time spent by the appellant in custody. It is the submission of the State that the court correctly took into account that the aggravating circumstances of this offence far outweigh the mitigating circumstances. In S v Vilakazi,[7]  the Supreme Court of Appeal held that in cases of serious crimes, the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment, the questions whether the accused is married or single, whether he has two or three children, whether he is employed or not, are themselves largely immaterial to what the period should be, and those seem to be the kind of 'flimsy' grounds that the case of S v Malgas[8] (Malgas) said should be avoided.[9]

 

[13]    Despite all the principles applicable to sentencing, it remains a highly subjective process. I believe most presiding officers will differ in their approach, depending on their personality and background. This, on its own, posits a difficult conundrum when considering whether a presiding officer will make a different finding when faced with similar circumstances. Presently, all relevant aspects have been taken into account, particularly the personal circumstances of the applicant. In Mokoena v S,[10] Rampai JP stated the position in para 13 as follows:

 

‘It is of paramount importance to have an offender adequately profiled before the sentence is imposed. Unless this is seen to have been done, it cannot be said that the punishment fits an offender – S v RABIE 1975 (4) SA 855 (AD).’

 

[14]    As indicated above, the offence forming the subject matter of the appeal of resorts under Part 2 of Schedule 2 of the Act. For a first offender, the prescribed term of imprisonment in terms of s 51(2)(a) is one of at least 15 years. The only possible exception to this is in terms of s 51(3) or (6) of the Act, namely whether there are substantial and compelling circumstances to deviate from the above directive. Marais JA, in oft-cited Malgas,[11] provides excellent guidelines for courts in how to deal with the prescribed “minimum sentences”. In Para 25, the honourable judge stated the position as follows:

 

‘What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether the circumstances of any particular case are such as to justify a departure.  However, in doing so, they are to respect, and not merely pay lip service to, the legislature’s view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.  In summary –

 

A          Section 51 has limited but not eliminated the courts’ discretion in imposing sentence in respect of offences referred to in Part 1 of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2).

 

B          Courts are required to approach the imposition of sentence conscious that the legislature has ordained life imprisonment (or the prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

 

C         Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised, and consistent response from the courts.

 

D         The specified sentences are not to be departed from lightly and for flimsy reasons.  Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co offenders are to be excluded.

 

E          The legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence.  While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

 

F          All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

 

G         The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ("substantial and compelling") and must be such as cumulatively justify a departure from the standardised response that the legislature has ordained.

 

H         In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

 

I           If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal, and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

 

J          In so doing, account must be taken of the fact that crime of that particular kind has been sentence should be assessed paying due regard to the benchmark which the legislature has provided.’ (My emphasis added.)

 

The fact that Malgas was confirmed, merely a week later, by the Constitutional Court in S v Dodo,[12] is an indication of its importance in our sentencing policy. The Act was meant to be in place for a year. It has now been renewed for 28 consecutive years.

 

[15]    In this instance, I have decided that there were substantial and compelling circumstances present to deviate from the prescribed sentence. In S v Robertson,[13]  Kusevitsky J stated:

 

‘In S v Selli the court pointed out that section 51(3) of the Criminal Law Amendment Act 105 of 1997 calls for a “purposeful enquiry by a sentencing court” into the presence or absence of substantial and compelling circumstances. The court stated thus:

 

"Self-evidently, this is intended to avoid visiting an accused with the severest sentence except in circumstances where there are no weighty or cogent facts which call for a less severe sentence.”’[14]

 

In custody awaiting trial[1]

[16]    It seems to me that the applicant is of the opinion that the two years in custody awaiting trial should be deducted from the prescribed minimum sentence. This refers to the Gravino-principle or the so-called 'mechanical rule of thumb' that was referred to and followed in S v Stephen and Another.[15] In Radebe and Another v S[16] (Radebe) and DPP v Gcwala[17] it was held that the period spent in prison awaiting trial cannot on its own constitute 'substantial and compelling circumstances' justifying a departure from the minimum sentence prescribed by the Criminal Law Amendment Act 107 of 1997. Lewis JA, who was the scribe in both Court of Appeal matters, stated in Radebe:

 

'. . . the period in detention pre-sentencing is but one of the factors that should be taken into account in determining whether the effective period of imprisonment to be imposed is justified: whether it is proportionate to the crime committed'.[18]

 

Applicant a primary caregiver/ bread winner of Minor children.

[17]    Lewis JA in De Villiers v S[2]  stated the position as follows:

 

‘[29] In S v M the court asked whether, in sentencing a primary  caregiver, a child’s interests should be one of the factors considered under what has come to be known as the Zinn triad – in sentencing a court must consider the crime, the offender and the interests of society (S v Zinn 1969 (2) SA 537 (A) at 540G-H), a formula followed time without number in this court and others. The triad is well-explained by Friedman J in S v Banda & others 1991 (2) SA 352 (B) at 355A-C:

 

“The elements of the triad contain an equilibrium and a tension. A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of and to the exclusion of the others. This is not merely a formula, nor a judicial incantation, the mere stating whereof satisfies the requirements. What is necessary is that the Court shall consider, and try to balance evenly, the nature and circumstances of the offence, the characteristics of the offender and his circumstances and the impact of the crime on the community, its welfare and concern.”’

 

[18]    It is clear that the mothers of the children have acted as the primary caregiver of the two children and not the applicant. It is a typical matter where the applicant was living on his own with a new girlfriend, utterly uninvolved with the day-to-day care of the minor children. He might have contributed financially but was absent physically and emotionally. In a significant decision of the Constitutional Court S v S[19]  Cameron J stated:

 

‘S v M has revolutionized sentencing in cases where the person convicted is the primary caregiver of young children. It has reasserted the central role of the interests of young children as an independent consideration in the sentencing process. Yet it would be wrong to apply S v M in cases that lie beyond its ambit. The mother in S v M was a single parent, and was almost exclusively burdened with the care of her children. There was no other parent who could, without disruption, step in during her absence to nurture the children, and provide the care they need, and to which they are constitutionally entitled.'

 

That is not the case here. Mrs S is not the children's sole caregiver. She is not "almost wholly responsible" for their care. Despite heartache and turbulence . . . Mrs S is united with the father of her children. He is their co-resident parent. And he is willing to care for them during her incarceration. . . . A non-custodial sentence is therefore not necessary to ensure their nurturing. And a custodial sentence will not inappropriately compromise the children's best interests.'[20] (Footnote omitted.)

 

Murder in a domestic relationship:

[19]    In this instance, the State erred before the start of the proceedings. The charge sheet indicated that this was an offence in terms of Part 2 Schedule 2. From the day of the offence, the death of the victim resulted from physical abuse, as contemplated in paras (a) and (b) of the definition of domestic violence in s 1 of the Domestic Violence Act 116 of 1998, by the accused who is or was in a domestic relationship with the victim. This falls under Part 1 Schedule 2, and this error was not explained to the applicant. Had it been explained to him, he would have been sentenced to life imprisonment. That is an indication of how serious the legislator is in its fervent quest to curb domestic violence murders. In order to appreciate the severeness of this type of offence, it is important to look at the definition of a domestic relationship and domestic violence, as defined in the Domestic Violence Act. In this Act, domestic violence is defined as follows:

 

'”domestic relationship”' means a relationship between a complainant and a respondent in any of the following ways:

 

(a) they are or were married to each other, including marriage according to any law, custom or religion.

 

(b) they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other.

 

(c) they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time).

 

(d) they are family members related by consanguinity, affinity, or adoption.

 

(e) they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate, or sexual relationship of any duration; or

 

(f) they share or recently shared the same residence.’

 

And domestic violence is defined as:

 

‘“domestic violence” means-

(a) physical abuse.

(b) sexual abuse.

(c) emotional, verbal, and psychological abuse.

(d) economic abuse.

(e) intimidation.

(f) harassment.

(g) stalking.

(h) damage to property.

(i) entry into the complainant's residence without consent, where the parties do not share the same residence; or

(j) any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health, or wellbeing of the complainant.’

 

[20]    In light of the definitions, it is clear that the applicant was in a domestic relationship. He was lucky that he incorrectly stood trial on the grounds of a murder under Part 2 Schedule 2 as opposed to Part 1 Schedule 2.

 

[21]    I reiterate the significance of South Africa’s legislative commitment to curbing domestic violence by prescribing certain minimum sentences with regards to certain crimes, particularly murders in the setting of domestic violence. In S v H.J.W,[21] Govindjee J held:

 

‘Importantly, society’s outrage at the senseless loss of life in the domestic setting has translated into a prescribed minimum sentence of life imprisonment for conduct of this nature. The relentless plague of gender-based violence, including so-called intimate femicide, is a cause for deep societal concern and anger. As the court held in S v Robertson:

 

 “It is so easy to glibly use the phrases and terminology of femicide and gender-based violence, in part because of the relentless frequency of its occurrence in our society, communities and homes, that it hardly causes anyone to bat an eyelid or to raise an eyebrow . . . this disease of gender-based violence and femicide . . . permeates the psyche of our country.”

 

The Domestic Violence Act, 1998, recognises that domestic violence is a serious social evil, that there is a high incidence of domestic violence within South African society and that victims of domestic violence are among the most vulnerable members of society. In S v Rohde, the court expressed itself as follows:  

 

 “Crime based on gender is an affliction in our society. Crimes against women are a social ill and efforts by government and society are increasing in light of a steady increase in these types of offence. The rate of murder of women in South Africa is alarmingly high, compared to the global average. Attitudes to women determine how women are treated in society. It is the lowered perception of women as human beings, all of whom are entitled to human dignity and equality, which results in the unhealthy social paradigm that they can be victims, and in fact end up as victims of crime because they are women. The judiciary must guard against such perceptions and creating the impression that the lives of women are less worthy of protection.”’[22] (Footnotes omitted.)

 

Whether the court was angered?

[22]    I was alarmed by the entire incident, as can be expected from any reasonable person. In S v Kekana,[23]  Mosopa J stated the position as follows:

 

‘In S v SMM  2013 (2) SACR 292 (SCA) at paragraph 13 the court dealt with what has to be considered when imposing a sentence and stated that:

 

“I hasten to add that it is trite that each case must be decided on its own merits. It is also self-evident that sentence must always be individualised, for punishment must always fit the crime, the criminal, and the circumstances of the case.  It is equally important to remind ourselves that sentencing should always be considered and passed dispassionately, objectively and upon a careful consideration of all relevant factors. Public sentiment cannot be ignored, but it can never be permitted to displace the careful judgment and fine balancing that are involved in arriving at an appropriate sentence. Courts must therefore always strive to arrive at a sentence which is just and fair to both the victim and the perpetrator, has regard to the nature of the crime and takes account of the interests of society. Sentencing involves a very high degree of responsibility which should be carried out with equanimity. As Corbett JA put it in S v Rabie:

 

“A judicial officer should not approach punishment in a spirit of anger because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal, and the interests of society which his task and the objects of punishment demand of him. Nor should he strive after severity; nor, on the other hand, surrender to misplaced pity. While not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality.”’

 

[23]    I have dealt with the different grounds of appeal. I must take into account the rather restrictive approach explained above when dealing with an application for leave to appeal. I am of the view that the applicant has not satisfied the threshold of the requirement that there is a reasonable prospect of success on appeal and that another court could or would come to a different conclusion in respect of the merits or the sentence in this matter.

 

[24]    In the circumstances, I make the following order:

 

The application for leave to appeal, on both the merits and the sentence, is dismissed.

 

Greyvenstein AJ

 

Appearances On behalf of the applicant:	Mr Phineas Mokoena
Instructed by:	Legal Aid South Africa
	4th Floor, Fedsure Building
	49 Charlotte Maxeke Street
	Bloemfontein
On behalf of the respondent:	Adv S Tunzi
Instructed by:	Office of the Director of Public Prosecutions
	Bloemfontein

 

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