S v Soni

• Jurisdiction: South Africa
• Court: KwaZulu-Natal Division, Pietermaritzburg
• Judge: Henriques J
• Judgment Date: 26 October 2018
• Citation: 2019 JDR 1058 (KZP)
• Hearing Date: 21 September 2018
• Docket Number: CC 29/14P

Henriques J:

Introduction

[1]

This matter has garnered much publicity both in the print and electronic media. It has been described as a 'legal soap opera'. The use of these words in my view, whilst it may help in selling newspapers, detracts from the seriousness of the offences and the impact these events have had on the family of the deceased, particularly his elderly parents, two daughters and on the family of the accused, particularly his son and daughter.

[2]

The accused was convicted on the following counts:

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(a)

Count 1 - the murder of Bhavish Sewram (the deceased) committed in circumstances contemplated in s 51 Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 ('the CLAA'), as the State proved the offence was planned and premeditated, and that the accused conspired with and formed a common purpose with, inter alia, Sugen Naidoo (Naidoo), Brian Treasurer (Treasurer), Sabelo Advocate Dlamini (Dlamini) and Mfaniseni Wiseman Nxumalo (Nxumalo);

(b)

Counts 2, 3 and 4 - defeating and obstructing the course of justice;

(c)

Count 5 - assault with intent to cause grievous bodily harm; and

(d)

Count 6 - Conspiracy to commit murder.

[3]

It is common cause that in terms of the CLAA, the prescribed minimum sentence on count 1 is that of life imprisonment. In securing convictions against the accused, the State proved that the accused conspired with and formed a common purpose with others and embarked on a campaign involving a number of schemes, being counts 2 to 5, to embarrass, humiliate and denigrate the deceased in the hope that this would eventually drive the deceased and his family from Pietermaritzburg. When these schemes failed, he conspired and formed a common purpose with others to kill the deceased (counts 1 and 6). The accused's apparent motive for this and the reason for his conduct, was as he believed the deceased and his wife, Kerusha Soni (Kerusha), had engaged in an extra-marital affair.

[4]

The transcript of these proceedings as well as the s 115 plea of the accused, indicated that the accused forgave his wife for the alleged affair and they reconciled. As a consequence of their reconciliation, their second child, Ariv, was conceived. Given that the deceased and his family were close friends of the accused and that they enjoyed the same social circle, a 'peace meeting' was arranged between the family of the deceased and that of the accused. According to the accused at such 'peace meeting' the deceased apologised to him for his conduct and they 'buried the hatchet' and reconciled their friendship. Although their friendship was not the same as before, according to the accused they were civil and cordial to each other and there were no hard feelings. This defence was advanced to answer the State's allegations of the apparent motive for the accused's conduct.

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[5]

Imposing sentence is one of the most difficult tasks [1] which a presiding officer has to grapple with. It has been described as a 'painfully difficult problem' [2] and it involves a careful and dispassionate consideration of all factors. The court must consider the factors referred to in S v Zinn [3] being the interests of society, the personal circumstances of the accused and the nature of the offences that have been committed. The court must also consider the recognised objectives of sentencing being prevention, rehabilitation, deterrence and retribution.

[6]

The seriousness of the offences, the circumstances under which they were committed and the victim are also relevant factors in respect of the last element of the triad. The personal circumstances of the accused including his age, education, dependants, his previous convictions, if any, his employment and other relevant conduct or activities call for consideration in respect of the second element. An appropriate sentence should also have regard to or serve the interests of society, as the first element of the Zinn triad, which is the protection of society's needs, and the deterrence of would-be criminals.

Issues

[7]

The issues which concern me at this stage of the proceedings are the following namely:

(a)

In respect of count 1, whether to impose the prescribed minimum sentence of life imprisonment. The defence submitting that there are substantial and compelling circumstances as contemplated in s 51(3) of the CLAA warranting a deviation from such sentence, namely that this was a crime of passion coupled with the fact that the accused is the primary caregiver of his daughter, Sonali; and

(b)

Secondly in respect of counts 2 to 6, the appropriate sentences to be imposed.

I propose to deal firstly with the provisions of the Criminal Law Amendment Act.

The Criminal Law Amendment Act

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[8]

The minimum sentences have been ordained to be the sentences that must ordinarily be imposed unless the court finds substantial and compelling circumstances which justify a departure therefrom. [4] In addition, the Supreme Court of Appeal (SCA) has indicated that the minimum sentences must not be departed from for 'flimsy reasons' and is the starting point when imposing sentence.

[9]

In terms of Malgas, in the event of substantial and compelling circumstances not existing, then a sentencing court is entitled to depart from imposing the prescribed minimum sentences, if it is of the view that having regard to the nature of the offence, the personal circumstances of the accused, and the interests of society, it would be disproportionate and unjust to do so. This is often referred to as the proportionality test.

Substantial and compelling circumstances

[10]

What is meant by substantial and compelling circumstance? Our courts have not attempted to define what is meant by substantial and compelling circumstances. This is in keeping with the principle that the imposition of sentence is pre-eminently the domain of a sentencing court. A court must consider all the circumstances of the case, including the many factors traditionally taken into account by courts when sentencing offenders.

[11]

When sentencing an accused person, a court has to evaluate all the evidence including the mitigating and aggravating factors to decide whether substantial and compelling circumstances exist. A court must be conscious of the fact that the legislature has ordained a particular sentence for such an offence and there must be convincing reasons to depart therefrom, which reasons must be stipulated on the record.

[12]

For circumstances to qualify as substantial and compelling, they need not be 'exceptional' in the sense that they are seldom encountered or rare, nor are they limited to those which diminish the moral guilt of the offender. Where a court is convinced, that after consideration of all the factors, an injustice would occur if the minimum sentence is imposed, then it can characterise such factors as constituting

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substantial and compelling circumstances and deviate from imposing the prescribed minimum sentence.

[13]

In S v Vilakazi [5] the court explained that particular factors, whether aggravating or mitigating, should not be considered individually and in isolation as substantial or compelling circumstances. Ultimately, in deciding whether substantial and compelling circumstances exist, one must look at traditional mitigating and aggravating factors and consider the cumulative effect thereof. When sentencing, a court takes into account the personal circumstances of an accused. However, only some of these carry sufficient weight to tip the scales in favour of the accused to impact on the sentence to be imposed. Often the fact that the accused is young and is a first offender has the effect of reducing a sentence as there is potential for the offender not to repeat the crime and be rehabilitated.

Mitigating and aggravating circumstances

[14]

SS Terblanche in the book The Guide to Sentencing in South Africa 3 ed (2016) at 209 describes mitigating and aggravating circumstances as those which present during and after the commission of a crime which may influence the sentence. There is no generally applicable list of mitigating and aggravating factors and whether a factor is mitigating or aggravating is determined by the presiding officer in each particular case when imposing a sentence. In S v Ramba [6] the court indicated that aggravating and mitigating factors are all these factors which a court can properly take into account in aggravation or mitigation of sentence.

[15]

The passing of sentence often requires 'balancing' of mitigating and aggravating factors and requires a sufficient amount of weight to be attached to each of these factors. It may often occur that aggravating factors might outweigh the mitigating factors even to the extent that mitigating factors have no effect on the sentence, such as when life imprisonment is imposed. A party wishing to rely on a mitigating factor must provide sufficient factual basis for that by producing evidence to satisfy the court that the mitigating factors justify a departure from the prescribed minimum sentence.

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[16]

The accused elected not to testify in mitigation of sentence but Messrs Van Schalkwyk SC and Howse made submissions from the bar, to be considered by the court when determining an appropriate sentence and which they argued should be regarded as substantial and compelling circumstances, warranting a deviation from the prescribed minimum sentence on count 1.

[17]

The accused, through his legal representatives, indicated that there was no need to present evidence. In addition, by consent between the State and the defence, various exhibits were handed in during the sentencing stage of the proceedings. These are exhibit 'LLLL', the victim impact statement of...