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CC 10/2000

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

SAMSON TAUNYANE APPELLANT

and

THE STATE RESPONDENT

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JUDGMENT

MOKGOATLHENG AJ:

INTRODUCTION:

[1] This is an application for leave to appeal to the Supreme Court of Appeal, alternatively the Full Bench of this Honourable Court in terms of section 315 of the Criminal Procedure Act No 51 of 1977 against the twenty (20) years imprisonment sentence imposed on the Appellant on the 14^th March 2000 by the Honourable Justice Khumalo after the Appellant was convicted of killing Sipho Emmanuel Kunyushi on the 20^th March 1999 by shooting him with a firearm.

[2] It is submitted that there is a reasonable possibility of a court of appeal interfering with the sentence as same is shockingly inappropriate.

[3] The leave to appeal is premised on the following grounds;

1. the killing of the deceased is a species of the offence referred to as “crime passionel”,

2. the Appellant committed adultery with the deceased, and as a result of this adulterous relationship, the marriage of the Appellant which was contracted in March 1983 was dissolved in August 1998.

[4] The undisputed facts are that, Appellant towards the end of 1996 found the deceased and his former wife in flagrante delicto in his bedroom.

The deceased and Appellant’s wife were employed as police by the South African Police Service, at Mafikeng Police Station and both had attained the rank of captain. The Appellant and his wife initially resolved their marital problems, after Appellant’s ex wife gave an undertaking to end her adulterous relationship with the deceased.

[5] The apparent reconciliation did not endure, the adulterous relationship continued and ultimately the parties marital, relationship between the Appellant and his wife ended in an acrimonious divorce. The latter was granted custody of the two minor children. The deceased thereafter cohabited with Appellant’s ex wife at the former common home.

[6] It is submitted that the Appellant was subjected to feelings of anxiety, severe provocation, frustration, distress, pain, humiliation and resentment during the three years subsequent to discovering Appellant’s adulterous relationship with the deceased.

[7] The contention is that the Appellant dearly loved his wife and cherished their marriage and family life, that this is evidenced by the fact that the Appellant sought counselling from his parents, his employment welfare officer, and chaplain.

[8] The Appellant when he again found the deceased in his bedroom, with his naked wife, he was shocked and traumatised by her deception and infidelity, but because Appellant feared the deceased he did not confront him regarding his adulterous affair with his wife, Appellant controlled his emotions and internalised his feelings of inferiority and had to endure a situation where he lost the love, affection, respect, support consortium of his wife.

[9] The Appellant had to endure being arrested after false charges were preferred against him. The Appellant and deceased’s wife openly flaunted their adulterous relationship, this humiliated the Appellant, who lost his self esteem. This state of affairs affected his performance at work. The Appellant was traumatised when he was assaulted by the deceased in February 1999, this was exarcebated by his wife who applied for a domestic violence protection order against him.

[10] On the 20^th March 1999, Appellant who had undergone a knee operation, saw his children in the deceased motor vehicle at Game Centre Mafikeng. Appellant engaged his children, whilst talking to them, the deceased arrived, jumped into his motor vehicle and drove off at speed. The appellant had to jump out of the motor vehicle’s way to avoid being hit thereby, as a result of this manoeuvre Appellant fell on his operated knee and experienced excruciating pain.

[11] This conduct by the deceased triggered the decision of the Appellant to kill the former. Twelve hours later Appellant repairing to deceased residence, and there fired several shots at the deceased who was in the bathroom with Appellant’s wife.

Submissions ad sentence

[1] It is conceded that Appellant had time to reflect on the incident preceding the murder, that the murder was planned and premeditated; but it is contended that the killing was not systematically planned and executed as the Appellant utilised his own firearm and returned to his parental home where he had acquired the firearm.

[2] It is contended that there is a real possibility that the severe emotional distress and pain the Appellant was subjected to over a prolonged period of three years could have blunted his ability to realise the full implications of what he intended to do and the failure to resist the forces within him that this is apparent from the irrational and uncontrolled manner in which the Appellant acted in the execution of his decision to kill the deceased.

[3] It is submitted that the Appellant’s in ability to appreciate the unlawfulness of his conduct was weakened to such a degree that his moral blameworthiness was materially reduced that he acted with diminished criminal capacity.

[4] It is contended that Appellant’s diminished criminal capacity as a result of a series of events over a period of three years constituted substantial and compelling circumstances which justified the imposition of a lesser sentence.

[5] It is trite that the imposition of sentence is vested in the discretion of the trial court. A court of appeal will ordinarily not interfere with the exercise the discretion of the trial court, unless it can be shown that the trial court did not exercise it’s discretion judicially; or that the sentence imposed is shockingly inappropriate.

See S v Kwatcha 2004(2) SACR 564 AT 569 A – B.

[6] The circumstances attendant in this case are somewhat unusual in that; the Appellant was subjected to humiliation, deceit, ridicule, psychological trauma, physical assault, abuse, denigration, betrayal, and ultimately rejection by his wife. The Appellant on the day he killed the deceased states that his decision was impelled by the manner in which the deceased affronted him in the presence of his children, this humiliation and loss of esteem exarcebated by the excruciating pain in his knee triggered overwhelming anger which caused the Appellant to decide to kill the deceased.

[7] It is so that the murder was committed eight months after the divorce, that the Appellant had considerable time to overcome his feelings of anger, resentment and frustration, and become reconciled to the fact that the marital relationship between him and his wife was over, and accept the reality, that he had to move on with his life in relation to his former wife. The fact of the matter is that the Appellant was still entitled to exercise his rights of access to his two children that this necessitated that at times he would be exposed to his former wife, and the deceased who was now living with his former wife and their two children. In my view it is understandable why the Appellant could not have complete closure regarding his erstwhile marital relationship this was because of his obligations as the father of his children.

[8] It is unfortunate that the defence at the trial court did not lead expert psychiatric evidence, regarding the effect of the concatenation of events which had a bearing on Appellant’s psychological state. It is apparent from the undisputed evidence in mitigation that these factors should have mitigated Appellant’s moral blameworthiness and thus had a marked bearing on sentence.

[9] In my view the trial court did not adequately consider and apply its mind thereto, or consider the cumulative effect thereof. The trial court only considered provocation as a mitigating factor and found that as the deceased and Appellant’s ex wife were responsible for the break up of the marital relationship, there were substantial and compelling circumstances justifying this imposition of a lesser sentence than the prescribed sentence in terms of the provisions of section 51 (1) of Act No 105 of 1997. The trial judge in my opion misdirected himself in not fully considering the diminished moral blameworthiness of the Appellant in view of the peculiar circumstances of this case. I am of the view with respect that the trial judge did not exercise his discretion in a judicial manner as a result of the prior misdirection in imposing the sentence of twenty (20) years imprisonment.

[10] In the premises I find that there is a reasonable possibility that a court of appeal may interfere with the imposed sentence.

The application for leave to appeal to the Full Bench of this Court is granted.

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R D MOKGOATLHENG

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

FOR THE APPELLANT : ADV C J ZWIEGELAAR

FOR THE RESPONDENT : ADV G S MAEMA

APPELLANT’S ATTORNEYS : GROENEWALD ATTORNEYS C\O JOHN NKOMO AND PARTNERS

RESPONDENTS ATTORNEYS : STATE ATTORNEYS

DATE OF HEARING : 29 APRIL 2005

DATE OF JUDGMENT : 03 JUNE 2005

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