S v Mnisi

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Cloete JA, Maya JA and Boruchowitz AJA
• Judgment Date: 19 March 2009
• Citation: 2009 (2) SACR 227 (SCA)
• Hearing Date: 19 November 2008
• Docket Number: 391/2008
• Counsel: M van Wyngaard for the appellant. SK Masilela for the State.

Boruchowitz AJA:

[1] This is an appeal against sentence only. The appellant was convicted, upon a plea of guilty, by the regional court (Benoni) on one count of J

Boruchowitz AJA

A murder. As the appellant was a first offender and the offence was committed in circumstances other than those referred to in Part I of Schedule 2 to the Criminal Law Amendment Act 105 of 1997 (the Act), the provisions of s 51(2)(a) of the Act found application. This section requires the imposition of a minimum sentence of 15 years' imprisonment B in the absence of 'substantial and compelling circumstances' justifying a lesser sentence. The regional court found such circumstances to be present and sentenced the appellant to a term of eight years' imprisonment. An appeal to the High Court, Pretoria, proved unsuccessful and the further appeal to this court is with its leave.

C [2] The appellant was convicted on the strength of a written statement made in terms of s 112(2) of the Criminal Procedure Act 51 of 1977. The factual basis upon which the plea of guilty was tendered can be summarised as follows: the appellant, who was a prison warder, admits that on 11 August 2001 at Rambuda Street in the district of Benoni he D unlawfully and intentionally shot and killed the deceased, Joshua Hlatswayo, with his licensed service firearm. Prior to the incident the appellant's wife and the deceased were involved in an adulterous relationship. The appellant resented this and found her actions to be extremely humiliating and degrading. He eventually confronted her E about the relationship with the deceased and their respective families discussed the matter. The appellant was relieved when his wife promised that she would no longer see the deceased and felt hopeful that he would be able to reconcile with her. Unfortunately matters did not turn out as promised. On the day of the incident the appellant found his wife and the F deceased embracing each other in a car. The appellant immediately drew his service firearm and shot the deceased where he was sitting in the vehicle. The appellant states that when he found his wife in the embrace of the deceased, all the hurt and pain he had suffered through the adulterous affair flooded his mind and provoked him to the extent that he G momentarily lost control of his 'inhibitions' and shot the deceased. The appellant claims that he did not intend to kill the deceased but discharged the firearm recklessly appreciating that his actions could kill the deceased.

H [3] The argument of the appellant is that the trial court had not given sufficient consideration to the fact that the appellant acted at the relevant time with diminished criminal responsibility as a result of the provocation and emotional stress which preceded the shooting. The shooting had occurred when the appellant's powers of restraint and self-control I were diminished. It was also contended that the trial court over-emphasised the objective gravity of the offence and the need to impose a deterrent sentence. Consequently, although the trial court had correctly found the existence of substantial and compelling circumstances justifying the imposition of a lesser sentence than the minimum prescribed, the sentence imposed is vitiated by misdirection as to entitle this court to J interfere therewith.

Boruchowitz AJA

[4] The appellant does not seek to rely upon the defence of temporary A non-pathological criminal incapacity [1] but rather upon diminished responsibility which is not a defence but is relevant to the question of sentence. The former relates to a lack of criminal capacity arising from a non-pathological cause which is of a temporary nature whereas the latter presupposes criminal capacity but reduces culpability. The following B cases are examples in this court where the fact that the accused was found to have acted with diminished responsibility warranted the imposition of a less severe punishment: S v Campher; [2]S v Laubscher; [3]S v Smith; [4]S v Shapiro; [5]and S v Ingram. [6]

[5] Whether an accused acted with diminished responsibility must be C determined in the light of all the evidence, expert or otherwise. There is no obligation upon an accused to adduce expert evidence. His ipse dixit may suffice provided that a proper factual foundation is laid which gives rise to the reasonable possibility that he so acted. Such evidence must be carefully scrutinised and considered in the light of all the circumstances D and the alleged criminal conduct viewed objectively. The fact that an accused acted in a fit of rage or temper is in itself not mitigatory. Loss of temper is a common occurrence and society expects its members to keep their emotions sufficiently in check to avoid harming others. What matters for the purposes of sentence are the circumstances that give rise E to the lack of restraint and self-control.

[6] The State accepted the averments and facts set out in the appellant's written statement which accompanied his plea of guilty. These undisputed facts raise the reasonable possibility that the appellant was not acting completely rationally when he shot the deceased and that his F actions were the product of emotional stress brought about by the conduct of the deceased and the appellant's wife. In my view the appellant's statement lays a sufficient factual foundation to support a finding that he acted with diminished responsibility when he committed the offence. Murder is undoubtedly a serious crime but the appellant's G conduct is morally less reprehensible by reason of the fact that the offence was committed under circumstances of diminished criminal responsibility. This factor was not afforded sufficient recognition and weight by the trial court in imposing sentence on the appellant. Also in H

Maya JA

A the appellant's favour, and not taken into account by the trial court, was the fact that the appellant acted with dolus indirectus when shooting the deceased.

[7] The trial court also placed undue emphasis on the element of deterrence as an object of punishment. This is evident from the following B passage in the judgment where the magistrate states the following:

'(T)he court cannot give the impression that the court condones people executing people being involved in adulterous affairs. As such, deterrence plays a heavy role in the sentence this court should impose. Society will have to find other means to deal with this problem in our C society.'

[8] So far as individual deterrence is concerned, the evidence does not suggest that the appellant has a propensity for violence or is a danger to society. He is a first offender and given the unusual circumstances of the case is unlikely again to commit such an offence.

D [9] The element of general deterrence must be placed in its proper perspective. Domestic violence is rife and those who seek solutions to domestic and other problems through violence must be severely punished. Sentences imposed must send a deterrent message. On the other hand sight cannot be lost of the fact that the appellant committed E murder whilst acting with diminished responsibility. In such circumstances the element of deterrence is of lesser importance when imposing sentence. This is consistent with the approach followed by this court in the Campher, Smith, Ingram and Shapiro cases.

[10] In the light of these misdirections this court is free to impose the F sentence it considers appropriate, subject to the provisions of the Act and the sentencing guidelines laid down in S v Malgas. [7]

[11] Taking these factors into account I am satisfied that, although direct imprisonment is warranted, a sentence of eight years would be unjust. The circumstances do not call for an exemplary sentence. In my view, G imprisonment for a period of five years would be an appropriate sentence.

[12] The appeal is upheld. The order of the court a quo is substituted with the following order:

H The appeal against the sentence is upheld. The sentence imposed by the magistrate is set aside and replaced with a sentence of five years' imprisonment.

Judgment

Maya JA:

I [13] I have had the benefit of reading the judgment of my colleague Boruchowitz AJA. Regrettably, I am unable to agree with both his reasoning and conclusion regarding the sentence he proposes should be imposed.

Maya JA

[14] The background facts and the factors relevant for determination in A the sentencing enquiry are set out in the main judgment and I need not repeat them. Suffice to mention that there is, regrettably, a paucity of detail on record as to how the incident actually occurred; no post-mortem report seems to have been filed and the matter was decided solely on the appellant's rather sketchy statement tendered in terms of B s 112 of the Criminal Procedure Act 51 of 1977, seemingly tailored [8] to explain his mental state.

[15] The statement reads as follows:

'. . .

2.

I plead guilty to a count of murder, freely, voluntarily and without C undue influence having been brought to bear on me.

3.

I admit that on 11/08/2001 and at Rambuda Str. Daveyton which is within this Honourable Court's jurisdiction area, I shot Joshua Hlatswayo (hereinafter referred to as the deceased) with my licensed 9mm Norenco arm as a result of which the deceased died. D

4.

I admit that I had no legal excuse for shooting the deceased and my actions were unlawful.

5.

I found my wife in a car in flagrante delicto with the deceased whereupon I immediately drew my arm and shot the deceased. E

6.

The shooting was not planned nor premeditated...