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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO. 129/05

In the matter between:-

SAMSON TAUNYANE Appellant

and

THE STATE Respondent

FULL BENCH APPEAL

HENDRICK J, GURA J & TLHAPI AJ

MAFIKENG

DATE OF HEARING : 09 September 2005

DATE OF JUDGMENT : 24 November 2005

COUNSEL FOR THE APPELLANT : Adv. C. Zwiegelaar

COUNSEL FOR THE STATE : Adv. G.S. Maema

JUDGMENT

GURA J:

Introduction

[1] I am looking forward to a day, on this planet, when all parties to a marriage or love relationship, will remain faithful to each other. When that day does dawn, then cases such as the present one will be rare in courts of law. This matter revolves around the rails of a love triangle.

[2] On 14 March 2000, before my brother Khumalo J, the appellant, hereinafter referred to as the accused, was convicted of murder, on his plea of guilty and sentenced to thirty five (35) years imprisonment of which fifteen (15) years imprisonment were suspended on appropriate conditions. The present appeal is directed against sentence.

Factual Background

[3] During 1980 the accused fell in love with Josephine Mothupi (“Mrs Taunyane”) and in 1983 they got married to each other. The marriage was blessed with two children, a girl and a boy, born 1984 and 1987 respectively. The accused was a member of the defence force whilst his wife was a member of the police force. Their common home was at Motlhabeng where they lived harmoniously.

[4] Mrs Taunyane was a captain by rank and a station commissioner of Mafikeng Police Station. Although she worked primarily day shifts, but time and again she visited the police station at night. On these visits during the night, the accused would accompany his dear wife as a token of love and moral support.

[5] Every morning the children left first for school. Then followed the defence force bus which ferried the accused to work. Mrs Taunyane was always the last to leave. The deceased in this case was Mrs Taunyane’s colleague and he would often fetch her from her house with his car to go to work. He was a captain .

[6] A Wednesday towards the end of 1996 is a day the Taunyane family will not like to remember. Normally, on Wednesdays, it was a sports day at the defence force. As he was waiting for his bus at the bus stop, the accused realised that he had forgotten his tracksuit at home. He walked back to fetch it, unbeknown to him that he was in a for a big surprise.

[7] The deceased’s car was parked inside his (accused’s) yard. This was nothing new because he normally parked there when he came to fetch Mrs Taunyane. The sitting room door was not locked. He entered to find his wife and the deceased in the main bedroom, on the bed, both naked, making love. The accused was angry as a result of this discovery but he managed to control himself. He just left without a word and without taking the tracksuit. He hitch- hiked to work.

[8] When he arrived at the military base, he complained to the Chaplain who then advised him to report to his parents. He could not work that day because of grief and shock. He was consequently released from work. He reported to his mother. In the evening, he discussed the incident with his wife. She apologised and he forgave her. Peace prevailed once more in their family.

[9] In 1997, whilst he was waiting at the bus stop, he saw the deceased’s car passing. He became suspicious and walked back to his house where he found the deceased’s car, this time parked outside the yard. Fortunately, the kitchen door was not locked. He found the deceased seated on his bed in the main bedroom. His wife was just from the bathroom and she was busy smearing her body with cream. The deceased then told Mrs Taunyane that it was late and they should go. The accused wanted to fight him but he was sure that he was going to loose the fight as he was afraid of the deceased. Again the accused left without a word.

[10] This last event dealt a fatal blow to the love and harmony which prevailed between the accused and his wife. However, they continued to stay together. She started to do more of special duties after working hours. This included weekends. Subsequently, he realised that the alleged police special duties after working hours and over weekends, were no police special duties at all but rather special duties in kind at the deceased’s house, in the deceased’s bedroom.

[11] He confronted his wife about her movements and he got what he did not bargain for when she told him that she could not break-up her love affair with the deceased who was the father of her children. Up to that stage, the accused knew that his wife’s two children were his natural children. Mrs Taunyane, however, brought one child into the marriage who is not the accused’s natural child.

[12] Subsequent to that, he was arrested about twice, on false allegations of assault by his wife. In August 1998 they divorced. He left his former wife and children in their common home and went to stay somewhere. On Christmas day that very same year he went to his former house to find the accused busy drinking liquor. He asked him what he wanted there whereupon the deceased told him that Mrs Taunyane was no longer his wife. A fight ensued between the two but the accused ran away.

[13] In January 1999 Mrs Taunyane applied for a domestic violence order to restrain the accused from troubling her. This application was however refused by the prosecutor. In February 1999 she and her children had moved to stay at Montshiwa. He went there in order to get his post. The deceased found him there and hit him with a clap. He left.

[14] On 15 March 1999 the accused underwent surgery on his knee where a patella was removed. On 20 March 1999, at Game Shopping Centre, he saw one of his children in a car. He went to that car and asked the child whose car it was. He was told that it belonged to the deceased. The deceased subsequently emerged, drove off suddenly, causing the accused to fall down on his ailing knee. This hurt him very much because he said he still “loved my wife as well as my children and I did not want to be separated from them”. This incident occurred around 12h00. He became so furious with the deceased that he decided that the time had come to deal with him.

[15] In the evening of that very same day at about 23h00, he took his loaded firearm and proceeded to the deceased’s house at Riviera Park. He found him in the bathroom busy bathing with his former wife. Through an ajar window, he fired several shots to the deceased, fatally wounding him.

The Submissions

[16] On appeal, counsel for the accused criticised the trial judge for paying lip-service to the factual background of the case, especially the emotional condition of the accused at the time of the killing. It was argued that the accused was subjected, not only to severe provocation but also to a feeling of “suspicion, anxiety, frustration, distress, pain, humiliation and resentment”. Apart from the aforesaid, (so runs the argument) the accused had to endure the “humiliation and pain of being belittled, insulted, threatened, intimidated, assaulted and detained” by the deceased on false allegations by Mrs Taunyane.

The Law

[17] This court, as a court of appeal will not lightly interfere with the discretion of the trial court in regard to sentence. There are two grounds upon which this court may interfere:-

(a) Where there is a misdirection on the part of the trial court and/or,

(b) Where there is a glaring disparity between the sentence imposed and the one which this court would have imposed (S v Anderson 1964 (3) SA 494 (A) at 495; S v Malgas 2001 (1) SACR 469 (SCA) at 478 D - H)

[18] Our courts have consistently held that where death occurs because of jealousy or anger as between lovers, this is a crime of passion due to the emotional condition in which the guilty party finds himself (herself). Depending on the facts of each case, such conflict situation gives rise to a mitigating factor. See S v Meyer 1981 (3) SA 11 (A) at 16 G where it was said that:-

“ń Mens het in die onderhawige geval te doen met ń verhoudingprobleem van twee persone, ʼn verhouding wat aanleiding kon gee tot emosionele konflikte en uiteindelik tot ń gewelddadige reaksie. In hierdie soort van saak ……. is die motief vir die dood te vinde …….. in ń geestelike konfliksituasie”.

A death sentence was substituted with eight years imprisonment on appeal.

[19] The decision in S v Meyer, supra, was applied in S v Shoba 1982 (1) SA 36 (AA). At page 41A of the judgment Botha AJA posed a question:-

“Waarom vermoor ń minnaar sy minnares? Volgens algemene menslike ervaring gebeur dit meestal as gevolg van ń emosionele konfliksituasie van die aard wat deur die HOOFREGTER bespreek is in S v Meyer 1981 (3) SA 11 (A) te 16G – 17B. Dit is natuurlik nie noodwendig altyd so nie, maar die blote bestaan van ʼn liefdeverhouding bevat al klaar ń inherente waarskynlikheid wat in daardie rigting dui, en dit moes die verhoorhof op sy hoede geplaas het om die omstandighede van die aanranding van naderby te beskou”.

The Appeal Court set aside the death sentence and substituted it with a term of imprisonment of twelve years. This decision was quoted with approval in S v Rammutla 1992 (1) SACR 564 (BA). In the latter case, the accused stayed with his lover for more than a year. A week before the murder, she packed her things, left the accused to go and stay with her aunts. The accused arrived where she was staying and the new boyfriend of the deceased hit him with an iron rod on the mouth as a result of which he bled. The accused instead hit his lover to death with an iron rod. The death sentence was substituted with twelve years imprisonment on appeal.

[20] The present case differs from S v Meyer, S v Shoba and S v Rammutla, supra, in that the deceased was not the accused’s spouse or lover or his former spouse or lover. However, such a situation was considered in S v Khwela 2001 (1) SACR 546 (NPD) where it was held that the emotional conflict situation and consequently the emotional disturbance that may result from a broken love relationship, may well have a bearing upon the state of mind of the injured party who kills his ex-lover’s new lover. It is important to note, however, that in Khwela’s case, the deceased never contributed to the break down of the love relationship between the accused and his wife. The deceased fell in love with that lady after her marriage with the accused had hit the rocks. He was sentenced to twenty two years imprisonment.

The present case

[21] The deceased was the cause of the irretrievable break down of the marriage between the accused and his wife. He was cheeky and spiteful. Despite the fact that he knew that Mrs Taunyane was married, he insisted on visiting her at her house in defiance of her husband (the accused). He must have realised that the accused was afraid of him. After causing the collapse of this marriage, he moved in to stay with Mrs Taunyane at her house; the former house of the accused. The conduct of the deceased, clearly, is that of a man who authored his own misfortune.

[22] In his judgment on sentence, Khumalo J, considered the incidence of crime in this country and the proliferation of firearms, the circumstances surrounding the commission of the crime, including the fact that the deceased was the source of all evil in the accused’s house, the fact that the accused pleaded guilty as well as the anger suffered at the Game Centre on the day of the killing. The trial Judge was convinced that under the circumstances, imprisonment for life would be unjust (Section 51 (3) (a) of Act 105 of 1997). The trial court decided, in its own wisdom, that a lengthy type of custodial sentence was called for.

[23] I have great sympathy for the accused. Firstly, because his marriage of fifteen years broke up because of the deceased; secondly, because he has to serve a jail term for this crime. However, it appears that the accused never accepted that Mrs Taunyane was no longer his wife. He knew that he would not be welcomed at her residence because of the bad blood between them. The divorce action was finalised in August 1998. On Christmas day of that year he went to his former house. Subsequent to that he went to Montshiwa to a house where his former wife, her children and the deceased were staying. Then at Game Centre he went to a car in which his child was. He knew or foresaw that whenever he went to the deceased, there would be no peace. It is rather with an air of disbelief to hear the accused, seven months after his divorce, saying that he still “loved my wife as well as my children and I did not want to be separated with them”. The costly mistake he made, was to regard Mrs Taunyane as his wife even months after the divorce.

[24] The killing of the deceased was very carefully planned and clinically executed with military precision. In my view, in crimes of passion such as the present, we must guard against an Open-Sesame approach, that where the killing is between lovers or spouses then the accused must always be treated leniently. In this regard I endorse the remarks of Niles – Dunér J in S v Khwela, supra, at 548 I to 549 C:-

“Whilst the facts of a particular case may be such as to result in a diminution of his blameworthiness, I am of the view that the Court should be careful to guard against the perpetuation of the oft-held misperception that in every case where there is a killing, consequent upon a break-up of a love relationship, of an ex-lover or the ex-lover’s new lover, the very existence of such a relationship alone is sufficient for the perpetrator to be regarded in so sympathetic a light as to justify the imposition of a sentence upon him markedly more lenient than that which would be imposed had the love relationship not existed and had there been some other motive for the killing than one connected with such love relationship. The facts of each case should be considered carefully, in order to determine whether such mitigating circumstances are indeed present, and if so, the extent to which such mitigating circumstances should influence the severity of the sentence to be imposed”.

[25] The accused had sufficient time to cool down from August 1998 up to March 1999. He had enough time to cool down from 12h00 to 23h00 on the day of this incident. His moral blameworthiness was therefore not tainted as at the time when he pumped several bullets into the deceased’s upper body. He had direct intent to kill. His act at that time seems to have been directed towards revenge; revenge over a sin which was committed more than six months ago.

[26] For the above mentioned reasons, I am of the view that the appeal must be dismissed. Consequently, I make the following order:-

“The appeal is dismissed”.

SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree

R.D. HENDRICKS

JUDGE OF THE HIGH COURT

I agree

V.V. TLHAPI

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT: Groenewald Attorneys

C/O Herman Scholtz

4 Shasons Centre

Shippard Street

MAFIKENG

FOR THE STATE : Director of Public Prosecutions

Old Standard Bank Building

Cnr Robinson and Main Street

MAFIKENG

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