S v Dr Marole

• Jurisdiction: South Africa
• Judge: Patel, J
• Judgment Date: 16 October 2002
• Docket Number: CC304/01
• Hearing Date: 07 February 2002
• Court: Transvaal Provincial Division
• Citation: 2003 JDR 0139 (T)

Patel J:

On 16 October 2002 this Court found Dr Mohlongoli Johannes Marole, the offender, guilty of murdering his wife, Makoma Victoria Marole, the deceased. On the probabilities it was found that the offender's actions were premeditated and had the intention to kill her. He undoubtedly executed her by shooting her through her head and the upper part of her body. When the police arrived, they found the naked body of the deceased lying on the bed and her body was riddled with bullet wounds. The offender was calm and he knew what had transpired. This Court found that he knew what he had done.

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Patel J

The killing of the deceased by the offending husband is the ultimate manifestation of violence against women. The United Nations Declaration on the Elimination of Violence against Women, of 20 December 1999, affirms:

"that violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms and concerned about the longstanding failure to protect and promote those rights and freedoms in the case of violence against women."

On International Womens' day, 8 March 1998, the members of SADC Womens' Parliamentary Network issued the Harare Declaration on the Prevention of Violence against SADC Women and Children, with the general objective inter alia:

"4.

To recognise the role of the State as an actor in the eradication of violence against women ......."

And amongst the legislative measures contemplated are:

"a.

making any form of violence against women an offence, even when committed in a "private place" (e.g. the home);

b.

taking an explicitly tougher stand against the impunity of violence to a partner;"

To be sure, a prominent feature of the universal and unceasing endeavour is to safeguard the basic human rights to women from the rabid violence within the confines of the private domain. Uroxicide is

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the most serious and extreme form of violence against woman. It is against this backdrop that the Judicial Culloquia (Judges and Lawyers), in 1994, issued the Zimbabwe Declaration, inter alia, stating:

"Judges and lawyers have a duty to familiarise themselves with the growing international jurisprudence of human rights and particularly with the expanding materials on the protection and promotion of human rights of women."

Today is Human Rights Day. It is also the culmination of sixteen days which campaign for the rights of women and children in this country.

With those introductory remarks, I turn to consider the sentencing process. The traditional approach in fixing an appropriate sentence is simply to recant the triad and mechanically applying by having some sense about the offender, the crime and the interests of society as well as blending a measure of mercy according to the circumstances. (S v Zinn 1969 (2) SA 537 (A) at 540 G-H; S v Rabie 1975 (4) SA 855 (A) at 862 G).

Sentencing is a vital component of the right to a fair trial, (S v N 1977 (1) SACR 84 TkSC at 87 e. It is in the public interest that an offender is sentenced not only judicially and properly, (S v Giannoulis 1975 (4) SA 867 (A) at 868 G-H; S v Banda 1991 (2) SA 352 (BGD), but also justly and fairly. Dumbutshena CJ, in delivering the judgment of the Zimbabwe Supreme Court, in S v Harrington 1989 (2) SA 348 (ZSC) at 362 E-F, noted:

"This is one of the principles of criminal justice which requires

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the punishment imposed by the courts for crimes committed must themselves be just and fair. In balancing the scales of justice it is well established to remember that:

'[t]here must be an appropriate degree of severity in the range of punishment available in order that the criminal justice system as a whole can rationally demons(rate that a breach of the law is attended by real consequences.' (See Australian Law Reform Commission Report No.44 at para 28). It is also well established that too harsh a sentence is as ineffective and an unjust as a sentence that is too lenient."

This Court, being the trial court, is well endowed to assess the weight to be accorded to the desperate and competing factors in determining an appropriate sentence. The technique certainly does not entail a mechanical approach by simply applying legal principles. What is essential, in the sentencing process is an informed evaluation of the quintet of cardinal factors: the offender, the offence, the interests of the community, and the interest of the victim as well as the concomitant of his or her family interest which may well be different from society's interest, S v Isaacs 2002 (1) SACR 176 (C) at 178j-179a); S v Thusi (TPD: CC 119/02, unreported judgment of 20 September 2002 at para [4]).

Sentencing an offender is notoriously an awesome exercise in evenly balancing the imaginary scales of justice to attain the objectives of punishment which are crystallised in four words: retribution, deterrence, prevention and rehabilitation. In fixing an

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appropriate sentence it is fundamental that punishment must be proportionate to the gravity of the offender's culpability, S v Dodo 2001 (1) SACR 594 (CC) at para [37]).

Therefore, in exercising this court's discretion to determine an appropriate sentence, it is to consider the quintet of factors. Thus, in relation to a conviction on an indictment of murder, the starting point for sentencing is Section 51 (1) of the Criminal Law Amendment Act 105 of 1997, as amended. It provides for a minimum sentence for a certain class of serious offenses. The Court is obliged to impose a sentence of life imprisonment where the offender is convicted of an offence referred to in Part 1 of Schedule 2. The obligatory life sentence is to be imposed for murder when it is planned or premeditated unless as provided for in subsection (3)(a), the Court is satisfied that substantial and compelling circumstances exist which justifies the imposition of a lesser sentence than the prescribed minimum sentence, which in this case will be life imprisonment, since this court found that your uroxicide was premeditated.

The offender is 41 years old. He came from a materially poor but spiritually rich family. He was born in a family of ten children. He started life as a herdboy and graduated in 1989 with the degrees of Mb.ChB. During 1989 he was an intern at Groothoek Hospital and subsequently worked as a medical officer. Thereafter he commenced practice in Tembisa. His practice was doing well but he was hijacked thrice and sustained an armed robbery at his consulting rooms. This caused him to relocate to Mamelodi where he became a successful general practitioner and earned an extremely high income.

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Whilst the offender was at MEDUNSA he met his wife, the deceased. They were married in 1989 and were blessed with three children, two boys and a girl. Until 1998 he was the sole breadwinner of his family. And that year the deceased commenced practice as a clinical psychologist.

They had a fairly good family relationship. Both of them maintained amicable relationships with their respective in-laws. They had a fairly good family life. They were financially secure. They were ardently practising Christians and played an active role in the International Assemblies of God's Church. They presented a perfect family portrait, but according to his evidence there were .marital problems, first the deceased's relationship with one Jackie and later with Thabo. According to Dr Irma Labuschagne, the forensic psychologist, who evaluated the offender and she testified in mitigation that:

"This does not mean, however, that men who find out that wives are committing adultery do not suffer extreme emotional reactions once they become aware of your wive's adultery. In my opinion this aspect did have an influence on the death of Joe's wife. The psycho-social stressors played a concomitant role. Joe must have lived through an extreme emotional storm and his usual coping mechanisms failed him completely."

On this aspect Dr Labuschagne surmised:

"It is possible, that the time he shot his wife, his emotions took over and he lost all rationality."

But this summation is not consistent with this Court's finding

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on the testimony of expert witnesses at the trial that the underlying mental state of the accused on the night of the incident was an adjustment disorder characterised by depression. It did not affect his ability to distinguish between right and wrong. In my view, Dr Labuschagne's bald statement that the offender's emotions took over and he lost all rationality is certainly of not any real assistance as to her expertise. (See: S v Mkhize and Others 1998 (2) SACR 478 Witwatersrand at 487d-g.) Brackwell J, sitting in the Queens Bench Division of the High Court of England in the case of...