South Africa: Eastern Cape High Court, Grahamstown

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[2018] ZAECGHC 17
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Dyala v S (CA&R269/2017) [2018] ZAECGHC 17 (7 March 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – GRAHAMSTOWN
Case No.: CA&R 269/2017
In the matter between:
NKULULEKO DYALA Appellant
And
THE STATE Respondent
JUDGMENT
REVELAS J:
Introduction:
[1] The appellant was charged, pleaded guilty to, and was convicted on a count of murder. The deceased was his estranged wife and it was common cause that the appellant had shot her with a firearm. On 30 June 2017 the appellant was sentenced to a term of 15 years’ imprisonment in the Regional Court, Port Elizabeth. The magistrate dismissed the appellant’s application for leave to appeal against the sentence imposed upon him. Leave to appeal against the aforesaid sentence was granted on petition to the High Court.
[2] The facts and circumstances giving rise to the murder charge, and other evidence relevant to the consideration of an appropriate sentence, were placed before the magistrate in the form of:
(a) The appellant’s statment handed in terms of section 112 (2) of the Criminal Procedure Act[1] (“the Act”), and
(b) Statements made by the appellant’s legal representative from the Bar in his address on sentence. The state did not adduce any evidence in terms of section 112 (3) of the Act.
The Evidence
[3] The evidence before the magistrate was the following:
[4] The appellant and his wife (“the deceased”) were in a relationship since 2005 and eventually got married December 2013. There is one child aged 8 born of their relationship. The appellant also has another child aged 9 from a different relationship. During October 2015, the appellant and his wife began experiencing marital problems and the deceased moved out of the marital home. This left the appellant in a devastated and emotional state as he loved the deceased and was desirous to reconcile with her and restore the marriage relationship. The deceased rejected all subsequent attempts to regain her affections.
[5] On 6 November 2015 the deceased called the appellant while he was attending a braai at a friend’s house. The purpose of her call was that she wanted him to bring her some meat. The appellant undertook to take her some, and he requested his friend to drive him to the deceased’s family home where she was staying at the time. On arrival at this house, the appellant knocked on the door, entered, and placed the meat on the kitchen counter, from where he saw the deceased in the lounge, busy arranging the hair of one of her relatives. He greeted the two women but the deceased did not return his greeting but instead told the appellant that he should leave. When he enquired from her “why she is chasing [him] away like this”, she threatened to call the police. The appellant then left and stood outside. He wanted his friend to fetch him, but the friend did not answer his phone.
[6] The appellant then walked to a shop across the street to seek shelter from the downpour of rain which had begun. While standing in front of the shop, under its roof, his emotions began to build up and the thought crossed his mind that there might be someone else in the deceased’s life, which would account for her behaviour towards him.
[7] In this state of mind the appellant decided to confront the deceased with his suspicions. He returned to the house and when the deceased saw the appellant, she shouted and screamed at him, demanding that he should leave. Despite his attempts to reason with her, he said “she just did not want to listen”. The appellant stated that he always carried his own licensed firearm on his person, and also on this day. It was tucked in the front of his trousers.
[8] It is not clear from the appellant’s statement at what point during their altercation, and by whom the firearm was removed from his trousers, but the deceased had grabbed the appellant’s firearm during their altercation, and he wrestled it back from her. The appellant stated that he did not know what then came over him, but he directed the firearm towards the deceased and fired five shots into her. She fell to the ground and lay there motionless. Overcome by the gravity of what he had just done, the appellant turned the gun on himself and fired a shot into his face and also fell to the ground. The appellant was taken to hospital where one of his eyes was surgically removed, a necessary procedure as a result of the damage caused by the bullet.
[9] The appellant admitted that when he shot the deceased he knew that she had posed no threat to him and stated that he sincerely regretted his actions.
The Magistrate’s Findings:
[10] During the argument presented to the magistrate by the appellant’s legal representative, the magistrate was referred to several judgments where courts imposed lesser sentences than the minimum sentence in cases with similar facts, and where murders committed by persons acting under severe emotional distress, sometimes referred to as “crimes of passion”. In S v Mvamvu 2005 (1) SCA 54 (SCA) Mthiyani JA observed in paragraph 13 of his judgment that one of the characteristics of a crime of passion is that it is committed “without rational reflection whilst the perpetrator was influenced by barely uncontrollable emotions”. There are several such cases where courts did not impose the prescribed minimum sentence. In S v Tafeni 2016 (2) SACR 720 (WCC), a case with similar facts, the accused’s sentence of fifteen years’ imprisonment was substituted on appeal with a sentence of twelve years’ imprisonment. (See also: S v Engelbrecht 2005 (2) SACR 163 (W); S v Makatu 2006 (2) SACR 582 (SCA)S v Dumba 2011 (2) SACR 5 (NCK); S v Mngoma 2009 (1) SACR 435 (E)).
[11] In her judgment on sentence the magistrate accentuated the seriousness of the crime of murder and reasoned that the case law she was referred to did not find application in the present case. She held that the present matter was distinguishable on the facts, particularly because the appellant had advanced no factual basis for his mere suspicion that the deceased had an affair with someone else. The magistrate accordingly found that no substantial and compelling circumstances existed in this case, justifying a departure from the mandatory minimum sentence of fifteen years’ imprisonment.
[12] When the magistrate dismissed the appellant’s application for leave to appeal, she referred to the judgment of Scott JA in Kgosimore v The State 1999 (2) SACR 238 SCA in her judgment. Citing from that judgment she reiterated that “sentence is a matter for the discretion of the court burdened with the task of imposing a sentence” and held that the sentence she imposed was not “vitiated by misdirection”, nor was it “startlingly inappropriate”, and neither did it “induce a sense of shock”. She held that there was not “a striking disparity between the sentence imposed” by her and sentences imposed in “other cases”.
Discussion:
[13] Although the magistrate correctly set out the test formulated in the case law as to the circumstances in which a court of appeal may interfere with her sentence, she was wrong in her assessment of her approach in sentencing the appellant.
[14] Firstly, she failed to have due regard to factors which sentencing courts consistently view as mitigatory, and thus viewed as constituting substantial and compelling circumstances. These were the following: The appellant was a gainfully employed, first offender at the age of 37. He pleaded guilty and he expressed remorse. The appellant was also incarcerated for five months awaiting his trial.
[15] Secondly, there were other factors in this tragedy which clearly constituted substantial and compelling circumstances and indicated a departure from the prescribed minimum sentence. On the undisputed evidence before the magistrate, the appellant had acted under severe, uncontrollable emotional distress when he shot his estranged wife. Immediately thereafter he shot himself. It appears from the circumstances that the appellant did not shoot himself to escape punishment or the consequences of what he had done, but it was rather it was part and parcel of his emotional state. The appellant’s loss one of his eyes as a result of his conduct, would certainly serve as a constant reminder of his crime in the future. As a result of his actions he has also lost all contact with his daughter. Whilst that fact is an understandable consequence in the circumstances - the deceased was her mother - it is yet another hardship the appellant had to face in his already bleak future as a result of his actions. Cumulatively considered, these factors all constituted substantial and compelling circumstances, and the magistrate ought to have viewed them as such.
[16] Thirdly, the fact that the appellant acted on a mere suspicion based on flimsy grounds might be an aggravating factor, but that did not exclude the fact he was also affected by very strong uncontrollable emotions which built up because his wife had rejected him. There was no evidence to suggest otherwise. The magistrate therefore erred by not having due regard to the relevant case law in matters such as the present appeal.
[17] In finding that no substantial and compelling circumstances existed, notwithstanding the factors referred to above, the magistrate, misdirected herself and to such an extent that her reasoning was vitiated by her misdirection. The decision whether or not substantial and compelling circumstances exists has been held to involve the exercise of a value judgment, but a court of appeal is entitled to substitute its own judgment on this issue if it is of the view that the lower court erred in its findings in that regard (See: Wijker v Wijker 1993 (4) SA 720 (A) and S v Hamoreda 1999 (2) 319 (W)). Accordingly, we are at large to consider the question of sentence afresh. Mr Els, counsel for the prosecution properly conceded that there were substantial and compelling reasons justifying a lesser sentence than 15 years’ imprisonment.
[18] In considering an appropriate sentence in line with the relevant case law, it must be borne in mind that “murder in any form remains a serious crime which usually calls for severe punishment. Circumstances may vary and the punishment must ultimately fit the true nature and the seriousness of the crime” (Ingram v S 1995 (1) SACR 1 (AD)). Each case must, however, be evaluated on its own particular facts.
[19] Mr Els referred us to the case of S v Mngoma (referred to above), where an appellant who murdered his common law wife, by strangling her, was sentenced to twelve years' imprisonment. In that matter the appellant had a reasonable reason to suspect his wife of adultery. He confronted her, assaulted her and sent her away. She was pregnant at the time. Nothing further happened between them. Four days later, when they were walking together, the appellant became incensed when he considered that he might not be father of the child. He then picked up a rock and felled his wife to the ground. Then he strangled her with a shoe lace. When she was dead he used the shoe lace to hang her from a tree. He then wrote a fake suicide note which he left with her body to give the impression that she had taken her own life. In considering an appropriate sentence the court emphasised the fact that the appellant had time to reflect on his actions, even though he acted “under the impulse of powerful emotions which had been smouldering for some days.”
[20] It is significant that the appellant in the appeal under consideration did not have time to reflect on what he was about to do, as he acted almost immediately. His emotions had been ‘smouldering’ since the previous month when the deceased left him. He worked himself up into an emotionally charged state of mind about her rejection of him and a possible reason therefore while standing outside the house. She had just rejected him again. He then in state returned to the house. He thus acted in the heat of the moment.
[21] The facts of this case are on a par with Makatu’s case, where the appellant also turned a firearm onto himself after killing his wife, acting under emotional distress. In that case the family of the deceased and his wife intervened and mediated between them in an attempt to effect a reconciliation, thus presenting him with time to reflect. The appellant nonetheless went to his wife’s office carrying his brother’s firearm, and killed her. In that case the SCA also considered a sentence of twelve years’ imprisonment appropriate, having due regards to the appellant’s emotional state.
[22] In my view, having regard to all the considerations outlined above, and the applicable case law, an appropriate sentence which meets the facts of this case is a term of ten (10) years’ imprisonment.
[23] In the circumstances the following order is made:
1. The sentence of fifteen years’ imprisonment imposed by the magistrate is set aside and substituted with the following:
“1. The accused is sentenced to a term of ten years’ imprisonment.
2. The sentence is antedated to 30 June 2017.”
_____________________
E REVELAS
Judge of the High Court
I concur:
_________________
J SMITH
Judge of the High Court
Appearances:
For the Appellant: Adv D.P Geldenhuys, instructed by Legal Aid
For the respondent: Adv D Els instructed by National Director of Public Prosecutions
Date heard: 21 February 2018
Date delivered: 07 March 2018
[1] Act 51 of 1977, as amended