IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between: 

and

THE STATE							Respondent
JUDGMENT

OLIVIER, AJ:

This is an appeal against the sentence imposed pursuant to a plea of guilty on a charge of arson committed on 2 February 2008. The appellant was sentenced on 21 July 2008 to five years imprisonment and he now appeals against the sentence imposed. In his plea-explanation made in terms of section 112(2) of the Criminal Procedure Act 51 of 1977, the appellant admitted that on 2 February 2008, and with the intent to injure Pricilla Ngqukwana in her property by setting fire to and destroying her house.   He admitted that he had proceeded to

her house, that he had waited for her, but that she never arrived. He decided to burn down her home and personal belongings. He stated that he had burnt down her house because the relationship between them had soured and he was angry with her.

The State, in turn, submitted from the bar that an interdict had been obtained against the appellant by the complainant, that he had breached the interdict, burgled her home and had abandoned his application for bail in the face of the resistance thereto by the complainant It was also submitted that this was the second time that he had attempted to burn the home down.       The    damage    resulting   from   the    arson   was approximately R20 000,00

The learned magistrate did find that it was an aggravating circumstance that the complainant had been experiencing problems for a considerable period of time and the fact that the appellant would not accept the relationship had broken down. The learned magistrate had regard to the ex parfe submissions made by the State in aggravation of sentence.

It is clear to my mind that the appellant's legal representative, in her submissions. had already drawn the learned magistrate's attention to the fact that the appellant had harboured a resentment towards the complainant and that this arose from "various issues arising out of this separation", and that there was an interdict granted against him.   It is indeed contemptuous of the interdict and aggravating that the appellant had burnt the house down.
The common cause and objective facts otherwise taken into account by the learned magistrate, were properly taken into account and considered by her. It does not appear to me that, even if these allegations had not been substantiated, that they carried weight with the magistrate. Even if they did, and even if she had misdirected herself by taking them into account, I would consider, having regard to the objective facts and as submitted by the appellant's legal representative at the hearing, and leaving aside all the submissions made by the State, that an appropriate sentence under the circumstances would indeed have been a sentence of five years imprisonment.

The learned magistrate was quite correct, in my view, in holding that the community regarded any such conduct against women and children in a serious light and having regard to the appellant's plea-explanation, it is clear that he had time to consider his actions whilst he was waiting for the complainant. The act of arson was a considered and deliberate act. It was not provoked by anything the complainant did or threatened to do.

/bw