S v Kgafela

• Jurisdiction: South Africa
• Judge: Schutz JA, Mthiyane JA and Shongwe AJA
• Judgment Date: 28 May 2003
• Docket Number: 429/2002
• Hearing Date: 21 May 2003
• Counsel: J Engelbrecht SC for the appellant. H R Molefe for the State.
• Court: Supreme Court of Appeal

Schutz JA:

[1] The appellant was sentenced to life imprisonment for the murder of her husband. Sitting in the Bophuthatswana Provincial D Division, Friedman JP held that there were no 'substantial and compelling circumstances' present, that is in the sense of s 51(3)(a) of the Criminal Law Amendment Act 105 of 1997. That being so, Friedman JP held, in the light of the decision in S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222) as E later approved in S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423) in para [40] at 615e - 616a (SACR) and 404I - 405E (SA), that he was obliged to impose a life sentence.

[2] But when he granted leave to appeal to this Court, after setting out a full review of the general sentencing rules (see F S v Kgafela 2001 (2) SACR 207 (B) in para [13] at 210g - 213f), he felt 'impelled to venture' that this Court might welcome the opportunity to revisit the decision in Malgas in order to give more definition or formulation to the phrase 'substantial and compelling circumstances' and to reverse the order of the enquiry. By this last he intended that the Court should commence with the conventional enquiry as to what is the G appropriate sentence and only thereafter proceed to the prescribed minimum sentence. Whatever one might think of the desirability of the law being as it is suggested it should be, the suggestion is contrary to the terms of the statute and the interpretative decisions in Malgas and Dodo. Marais JA expressly said in Malgas (in para [20] at 480f (SACR) and 1234C - D (SA)) that: H

'It would be an impossible task to attempt to catalogue exhaustively either those circumstances or combinations of circumstances which would rank as substantial and compelling or those which could not.'

I agree entirely.

[3] Notwithstanding, Friedman JP said in his judgment granting leave: I

'In my view, although I think with modesty that my judgment is correct, nevertheless there is a dispute on it. I have stated in the judgment that although I am bound by the decision of the Appellate Division I still believe that the terms substantial and compelling circumstances should be defined and in the circumstances and in the interests of law I will grant leave to appeal.' J

Schutz JA

This is an approach to granting leave that cannot be accepted. Whilst being of the view that his judgment was correct, Friedman JP A considered that this Court should be given the opportunity of mending its earlier judgment. In Cassell and Co Ltd v Broome and Another [1972] AC 1027 the House of Lords observed that in granting leave to appeal the Court of Appeal (headed by Lord Denning MR) had expressed the opinion that a previous decision of the House had B been made per incuriam, or was in any event wrong, or was...