S v Netshiavha

• Jurisdiction: South Africa
• Judgment Date: 25 September 1990
• Citation: 1990 (2) SACR 331 (A)

S v Netshiavha
1990 (2) SACR 331 (A)

1990 (2) SACR p331

Citation	1990 (2) SACR 331 (A)
Court	Appellate Division
Judge	Goldstone AJA
Heard	September 14, 1990
Judgment	September 25, 1990
Counsel	P N V Ndou for the appellant at the request of the Court; A van Dyk for the State

Flynote : Sleutelwoorde B

Sentence — Mitigating factors — Belief in witchcraft — Although the reasonable man does not believe in witchcraft, a subjective belief therein may be a factor which may, depending on the circumstances, have a material bearing on accused's blameworthiness — May thus be a mitigating factor to C be taken into account — Held to be a relevant factor in mitigation of sentence for culpable homicide where belief in witchcraft offered the only explanation for accused's killing of deceased.

Headnote : Kopnota

Objectively speaking, the reasonable man so often postulated in our law does not believe in witchcraft. However, a subjective belief in witchcraft may be a factor which may, depending on the circumstances, have a material bearing upon the accused's blameworthiness in relation D to the offence. As such it may be a relevant mitigating factor to be taken into account in the determination of an appropriate sentence.

The Court, in an appeal against a sentence of 10 years' imprisonment for culpable homicide, held that the appellant's belief in witchcraft was indeed a relevant factor as it offered the only explanation for the E appellant having killed the deceased who was his neighbour and with whom he was on good terms, there being no objective motive for the crime. The Court, taking into account also that the appellant had acted grossly negligently in striking out with an axe at a person who had not acted as a threat to his life or property, altered the sentence to one of four years' imprisonment. F

Case Information

Appeal from a sentence imposed in the Supreme Court of Venda (Klopper ACJ). The facts appear from the judgment of Goldstone AJA.

P N V Ndou for the appellant, at the request of the Court, referred to the following authorities: As to the grounds upon which an appeal Court will interfere with a discretionary sentence imposed by a trial Court, see S v De Jager 1965 (2) SA 616 (A) at 628-9; S v M 1976 (3) SA 644 (A); S v Anderson 1964 (3) SA 494 (A); S v Ivanisevic 1967 (4) SA 572 G (A); R v Lindsay 1957 (2) SA 235 (N). As to the triad of factors, the crime, the criminal and the interests of society, to be taken into account in determining a proper sentence and how such factors should be applied, see S v Rabie 1975 (4) SA 855 (A); S v Holder 1979 (2) SA 70 (A) at 74-5, 80-1; S v Runds 1978 (4) SA 304 (A) at 312; S v Khulu 1975 (2) SA 518 (N) at 522. As to when a sentence of imprisonment should be imposed on a first offender, see S v Kolati 1975 (1) SA 569 (C). H

A van Dyk for the State referred to the following authorities: As to a contention that the imposition of sentence is a matter for the discretion of the trial Court, see S v Giannoulis 1975 (4) SA 867 (A); S v Rabie 1975 (4) SA 855 (A). As to when an appeal Court will interfere with such a sentence, see S v Pillay 1977 (4) SA 531 (A); S v Whitehead 1970 (4) SA 424 (A); S v Giannoulis (supra). As to remorse as a I mitigating factor, see R v Mvelase 1958 (3) SA 126 (N); R v Mtataung 1959 (1) SA 799 (T); S v Seegers 1970 (2) SA 506 (A). As to the basic elements applicable in the determination of an appropriate sentence, see S v Zinn 1969 (2) SA 537 (A) at 540G-H; S v Roux 1975 (3) SA 190 (A); S v Sparks 1972 (2) SA 396 (A) at 410. As to the most important objects of punishment, see R v Swanepoel 1945 AD 444 at 445; S v Rabie (supra at...