S v Mnisi

• Jurisdiction: South Africa
• Judgment Date: 19 March 2009
• Citation: 2009 (2) SACR 227 (SCA)

S v Mnisi
2009 (2) SACR 227 (SCA)

2009 (2) SACR p227

Citation	2009 (2) SACR 227 (SCA)
Case No	391/2008
Court	Supreme Court of Appeal
Judge	Cloete JA, Maya JA and Boruchowitz AJA
Heard	November 19, 2008
Judgment	March 19, 2009
Counsel	M van Wyngaard for the appellant.; SK Masilela for the State.

Flynote : Sleutelwoorde

Murder — Sentence — Provisions of s 51(2)(a) of Criminal Law Amendment Act H 105 of 1997 applicable — Accused acting with diminished responsibility — Accused's wife in adulterous relationship with deceased — On seeing his wife in embrace with deceased, accused shooting deceased — Accused provoked thereby and losing control of his inhibitions — Trial court not according sufficient weight to accused's diminished criminal responsibility I — Fact that accused acted with dolus indirectus also not taken into account — Deterrence of lesser importance as evidence not suggesting accused had propensity for violence and was unlikely again to commit such offence — In view of accused's diminished criminal responsibility, general deterrence of lesser importance — Sentence of eight years' imprisonment altered to one of five years' imprisonment. J

2009 (2) SACR p228

Headnote : Kopnota

A The appellant had pleaded guilty to, and had been convicted of murder by a regional court. 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. Accordingly, the provisions of s 51(2)(a) of the Criminal Law Amendment Act were applicable. The regional court found that 'substantial and compelling B circumstances' justifying a sentence of less than 15 years' imprisonment were present and sentenced the appellant to eight years' imprisonment. The appellant's appeal to a High Court failed. In a further appeal, it appeared that the appellant, a prison warder, had shot and killed the deceased with his licensed service firearm. In his written statement in terms of s 112(2) of the C Criminal Procedure Act 51 of 1977, which was accepted by the State, the appellant stated that his wife and the deceased had been involved in an adulterous relationship, which the appellant resented and which he found to be extremely humiliating. The appellant confronted her about the relationship with the deceased and their respective families discussed the matter. He was relieved when his wife promised that she would no longer D see the deceased and he felt hopeful that he would be able to reconcile with her. However, on the day of the incident the appellant found his wife and the 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 stated that when he found his wife in the embrace of the deceased all the hurt and pain he had suffered through the adulterous E affair flooded his mind and provoked him to the extent that he 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.

Held (per Boruchowitz AJA, Cloete JA concurring), that the appellant's statement F had laid a sufficient factual foundation to support a finding that he acted with diminished responsibility when he committed the offence. Murder was undoubtedly a serious crime but the appellant's conduct was morally less reprehensible by reason of the fact that the offence was committed under circumstances of diminished criminal responsibility. (Paragraph [6] at 231f–h.)

Held, further, that this factor had not been afforded sufficient recognition and G weight by the trial court in imposing sentence on the appellant. Also in 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. (Paragraph [6] at 231g–232a.)

Held, further, that the trial court had placed undue emphasis on the element of H deterrence as an object of punishment. So far as individual deterrence was concerned, the evidence did not suggest that the appellant had a propensity for violence or was a danger to society. He was a first offender and, given the unusual circumstances of the case, was unlikely again to commit such an offence. (Paragraphs [7]—[8] at 232b–d.)

Held, further, that the element of general deterrence had to be placed in its proper I perspective. Domestic violence was rife and those who sought solutions to domestic and other problems through violence had to be severely punished. Sentences imposed had to send a deterrent message. On the other hand, sight could not be lost of the fact that the appellant had committed murder whilst acting with diminished responsibility. In such circumstances the element of deterrence was of lesser importance when imposing sentence. J (Paragraph [9] at 232d–e.)

2009 (2) SACR p229

Held, further, that, although direct imprisonment was warranted, a sentence of A eight years would be unjust. As the circumstances did not call for an exemplary sentence, a sentence of five years' imprisonment was appropriate. (Paragraph [11] at 232g.) (Maya JA dissenting). Appeal allowed.

Annotations:

Cases cited

Reported cases

Director of Public Prosecutions, Transvaal v Venter 2009 (1) SACR 165 (SCA) ([2008] 4 All SA 132): discussed B

R v Dhlumayo and Another 1948 (2) SA 677 (A): dictum at 706 considered

S v Calitz 1990 (1) SACR 119 (A): referred to

S v Campher 1987 (1) SA 940 (A): dicta at 964C - E and 967D - E applied C

S v Cunningham 1996 (1) SACR 631 (A): referred to

S v Di Blasi 1996 (1) SACR 1 (A): referred to

S v Francis 1999 (1) SACR 650 (SCA): referred to

S v Henry 1999 (1) SACR 13 (SCA): referred to

S v Ingram 1995 (1) SACR 1 (A): dictum at 8d - i applied

S v Kalogoropoulos 1993 (1) SACR 12 (A): referred to D

S v Kensley 1995 (1) SACR 646 (A): referred to

S v Khumalo and Others 1984 (3) SA 327 (A): considered

S v Kok 2001 (2) SACR 106 (SCA): referred to

S v Laubscher 1988 (1) SA 163 (A): dictum at 173F - G applied

S v Makatu 2006 (2) SACR 582 (SCA): discussed

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): applied E

S v McDonald 2000 (2) SACR 493 (N): considered

S v Potgieter 1994 (1) SACR 61 (A): referred to

S v Shapiro 1994 (1) SACR 112 (A): dictum at 123c - f applied

S v Smith 1990 (1) SACR 130 (A): dictum at 135b - e applied

S v Wiid 1990 (1) SACR 561 (A): referred to. F

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 51(2)(a), Schedule 2 Part I: see Juta's Statutes of South Africa 2007/8 vol 1 at 1-522 and 1-529 - 1-530

The Criminal Procedure Act 51 of 1977, s 112(2): see Juta's Statutes of G South Africa 2007/8 vol 1 at 1-354.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Brunette AJ and Van Zyl AJ), dismissing an appeal against sentence. The facts appear from the judgment of Boruchowitz AJA. H

M van Wyngaard for the appellant.

SK Masilela for the State.

Cur adv vult. I

Postea (March 19).

Judgment

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

2009 (2) SACR p230

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...