S v Rossouw

• Jurisdiction: South Africa
• Judgment Date: 19 June 2017
• Citation: 2018 (1) SACR 179 (NCK)

S v Rossouw
2018 (1) SACR 179 (NCK)

2018 (1) SACR p179

Citation	2018 (1) SACR 179 (NCK)
Case No	CA&R 15/2017
Court	Northern Cape Division, Kimberley
Judge	Mamosebo J and Erasmus AJ
Heard	June 5, 2017
Judgment	June 19, 2017
Counsel	Adv Van Tonder for the appellant, instructed by Legal Aid South Africa.; Adv Kgatwe for the state.

Flynote : Sleutelwoorde

Sentence — Prescribed minimum sentence — Criminal Law Amendment Act 105 of 1997 — Substantial and compelling circumstances — Consideration of on appeal — Proper enquiry required — Cumulative factors E including provocation; consumption of alcohol; prior assaults of appellant by deceased; and that appellant mother of three children and gainfully employed, constituting substantial and compelling circumstances justifying lesser sentence.

Headnote : Kopnota

The appellant was convicted in a magistrates' court of murder and was sentenced F to 15 years' imprisonment in terms of s 51(2) of the Criminal Law Amendment Act 105 of 1997. The incident had occurred at night following a scuffle between the appellant and deceased which ended in the appellant stabbing the deceased in the chest, the wound penetrating to his heart. On appeal, the court dismissed the challenge to the conviction but held, in G respect of the sentence, that it had to be kept in mind that ordinarily the test on appeal was not whether the court would have imposed a different sentence, but whether the court a quo had exercised its discretion judicially. Where a sentence had been imposed in terms of Act 105 of 1997 and the prescribed sentences could not be departed from lightly or for flimsy reasons, a proper enquiry was required on appeal as to whether the facts, that had been considered by the sentencing court, constituted substantial H and compelling circumstances. (See [21].)

Held, that the personal circumstances of the appellant, namely that she was a 40- year-old first offender who had three daughters ranging between the ages of 19 and 4; that she had been gainfully employed and was an active participant in her church activities; that she had been moderately under the influence of alcohol during the commission of the crime; that the deceased I had assaulted her on several occasions in the past; and that there had been a measure of provocation before the commission of the crime, the cumulative effect of these circumstances could be characterised as substantial and compelling, which would render the imposition of the minimum sentence unjust. An appropriate sentence in the circumstances would be one of 12 years' imprisonment. (See [22] and [25].) J

2018 (1) SACR p180

Cases cited

Director A of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) (2016 (2) SA 317; [2016] 1 All SA 346; [2015] ZASCA 204): referred to

R v Dhlumayo and Another 1948 (2) SA 677 (A): referred to

S B v Boesak 2001 (1) SACR 1 (CC) (2001 (1) SA 912; 2001 (1) BCLR 36; [2000] ZACC 25): referred to

S v De Oliveira 1993 (2) SACR 59 (A): dicta at 63i – 64b applied

S v Francis 1991 (1) SACR 198 (A): referred to

S v Hadebe and Others 1997 (2) SACR 641 (SCA): referred to

S v Jochems 1991 (1) SACR 208 (A): referred to

S C v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) ([2002] 4 All SA 74) dictum at 593i – j applied

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; [1995] ZACC 3): referred to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): referred to

S D v Obisi 2005 (2) SACR 350 (W): referred to

S v PB 2013 (2) SACR 533 (SCA) ([2012] ZASCA 154): dictum at 539f – g applied

S v Pillay 1977 (4) SA 531 (A): referred to

S v V 2000 (1) SACR 453 (SCA): referred to.

Legislation cited

The E Criminal Law Amendment Act 105 of 1997, s 51(2): see Juta's Statutes of South Africa 2016/17 vol 1 at 2-516.

Case Information

Adv Van Tonder for the appellant, instructed by Legal Aid South Africa.

Adv F Kgatwe for the state.

An appeal against a conviction for murder and sentence of life imprisonment imposed in a regional magistrates' court.

Order G

1.

The appeal against the conviction is dismissed.

2.

The appeal against the sentence succeeds and the sentence of 15 years' imprisonment is set aside and replaced with the following:

'The accused is sentenced to undergo 12 years' imprisonment.'

3.

H The sentence is antedated to 24 April 2015.

Judgment

Erasmus AJ (Mamosebo J concurring):

[1] The appellant was convicted on a charge of murder in the regional I court, Calvinia, and sentenced to 15 years' imprisonment in terms of the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997. She appealed against her conviction and sentence, after leave to appeal had been granted on petition.

[2] The appellant had pleaded not guilty during her trial. In her J plea explanation, she admitted to having stabbed the deceased on

2018 (1) SACR p181

Erasmus AJ (Mamosebo J concurring)

2 March 2014 and that he had died as a result of the stab wound she had A inflicted on him. It was stated that she had acted in self-defence.

[3] It is trite that there is no onus on an accused in a criminal case and that the state had to prove the guilt of the appellant beyond reasonable doubt. [1] This includes that the state had to prove that the appellant had not acted in self-defence and, if she had defended herself against an B attack by the deceased, that she had exceeded the legitimate bounds of self-defence.

[4] The issue whether the appellant had acted in self-defence must be considered in the context of the evidence of the eyewitness, Mr Jimmy Solomons. He was a single witness in respect of the interaction that had C taken place between the appellant and the deceased on the night in question.

[5]...