S v Kgafela

• Jurisdiction: South Africa
• Citation: 2003 (2) SACR 176 (SCA)

S v Kgafela
2003 (2) SACR 176 (SCA)

2003 (2) SACR p176

Citation	2003 (2) SACR 176 (SCA)
Case No	429/2002
Court	Supreme Court of Appeal
Judge	Schutz JA, Mthiyane JA and Shongwe AJA
Heard	May 21, 2003
Judgment	May 28, 2003
Counsel	J Engelbrecht SC for the appellant.; H R Molefe for the State.

Flynote : Sleutelwoorde

Appeal — Leave to B appeal — When to be granted — Court of view that its judgment is correct — Leave not to be granted in order for Court hearing appeal to have opportunity to reconsider or mend judgment previously handed down and which binds lower Court.

Headnote : Kopnota

Where a Court is of the view that its judgment is correct, it should not grant leave to appeal in order for the Court hearing the C appeal to have the opportunity to reconsider or mend a judgment the Court of appeal has previously handed down and which binds the lower Court. (Paragraph [3] at 178a - d.) D

Annotations:

Cases cited

Reported cases

Cassell and Co Ltd v Broome and Another [1972] AC 1027 (HL): applied

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423): referred to

S v Kgafela 2001 (2) SACR 207 (B): E sentence imposed confirmed

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222): approved and applied.

Case Information

Appeal from a sentence of life imprisonment handed down in the Bophuthatswana Provincial Division (Friedman JP). The facts F appear from the reasons for judgment.

J Engelbrecht SC for the appellant.

H R Molefe for the State.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: G

R v Karg 1961 (1) SA 231 (A) at 236A - B

R v Taljaard 1924 TPD 581

S v Banda 1991 (2) SA 352 (B) at 353G - J, 355I - 356C, 356E - G, 356I

S v De Kock 1997 (2) SACR 171 (T) H

S v Dlomo and Others 1991 (2) SACR 473 (A)

S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252)

S v Francis 1991 (1) SACR 198 (A)

S v Hoffman 1978 (4) SA 61 (A) I

S v Lekoata 1978 (4) SA 684 (A)

S v Letseko and Others 1964 (4) SA 768 (A)

S v Maleka 1976 (1) SA 374 (O)

S v Meyer 1981 (3) SA 11 (A)

S v Mlumbi en 'n Ander 1991 (1) SACR 235 (A)

S v Ngubane 1980 (2) SA 741 (A) J

2003 (2) SACR p177

S v Nxele 1973 (3) SA 753 (A)

S v Quandu 1989 (1) SA 517 (A) A

S v Seegers 1970 (2) SA 506 (A) at 511G - H

S v Sobandla 1992 (2) SA 613 (A)

S v Tilotsane 1977 - 1979 BLR 39 (B)

S v Victor 1970 (1) SA 427 (A)

S v Vries 1996 (2) SACR 638 (Nm) B

S v Wilken 1971 (3) SA 488 (A).

Chaskalson et al Constitutional Law of South Africa at 28-9 (revision service 5, 1999)

Du Toit Straf in Suid-Afrika at 68, para 3.4.12. C

Cur adv vult.

Postea (May 28).

Judgment

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...