Fati v S (CA&R 234/2009) [2010] ZAECGHC 21 (19 March 2010)

FILING SHEET

EASTER CAPE HIGH COURT,

GRAHAMSTOWN

JUDGMENT

PARTIES:

S

FATI

vs

THE

STATE

Case Number: CA & R 234/2009

DATE HEARD: 17 March 2010

JUDGMENT DELIVERED: 19 March 2010

JUDGES: EBRAHIM & SCHOEMAN JJ

Appearances:

For the Appellant: Ms L Crouse

For the Respondent: Mr Mgenge

Instructing attorneys:

For the Appellant: Justice Centre, Port Elizabeth

For the Respondent: Director of Public Prosecutions, Grahamstown

CASE INFORMATION:

Nature of proceedings: Criminal procedure – Appeal

Topic: Appeal against sentence – appeal upheld

Key Words: Appeal against sentence – misdirection by regional magistrate in imposing minimum sentence of fifteen years and in concluding absence of substantial and compelling circumstances justifying a lesser sentence – appeal upheld – sentence of imprisonment for ten years imposed and antedated to 16 April 2009

IN THE EASTERN CAPE HIGH COURT,

GRAHAMSTOWN

CASE NO: CA & R 234/09

(Case No. Hankey RC 13/09)

SIPHOKAZI FATI Appellant

versus

THE STATE Respondent

Y EBRAHIM J:

Introduction

The Appellant, pursuant to a plea of guilty, was convicted of murder in the Regional Court for the Regional Division of the Eastern Cape, Hankey, and sentenced to a term of imprisonment for fifteen years.

An application by the appellant for leave to appeal against the sentence was refused by the learned Regional Magistrate but on petition to the High Court leave to appeal was granted.

The appellant’s primary ground of appeal is that the Regional Magistrate misdirected himself in imposing the minimum sentence of fifteen years and in finding that substantial and compelling circumstances justifying a lesser sentence did not exist.1 Further grounds of appeal are that it was a crime of passion and there was diminished responsibility on the part of the appellant and that she was an excellent candidate for rehabilitation.

It is trite that sentence is a matter for the discretion of the trial court and that a Court of Appeal may only interfere if the sentence is vitiated by misdirection or is startlingly inappropriate or if there is a striking disparity between the sentence imposed and the sentence the Court of Appeal would have imposed.2

In the court a quo, the appellant’s legal representative submitted that the murder was a ‘crime of passion’ but this was rejected by the Regional Magistrate who, when sentencing the appellant, remarked that :

‘Jou “crime of passion” gevalle is waar ‘n persoon gewoonlik ‘n geliefde betrap in ‘n verhouding met ‘n ander persoon en dan as gevolg van die ontdekking dan in ‘n hoogs geprovokeerde toestand ‘n misdryf pleeg of ‘n persoon dood en die onderhawige geval is baie duidelik van dit te onderskei. Daar was nie meer ‘n verhouding tussen u en die oorledene nie. Die verhouding is die voorafgaande maand al verbreek. Dat die oorledene probleme met u ondervind het blyk baie duidelik en dat u dit op ‘n regmatige wyse probeer besleg het blyk ook duidelik, want hy het ‘n interdik teen u uitgedien. U was baie duidelik net nie bereid om te aanvaar dat die oorledene nie verder met u ‘n verhouding wil hê nie en is u optrede bloot gemotiveer deur jaloesie. Daar kan sekerlik nie geargumenteer word dat u geprovokeer was deur die oorledene omrede hy nou ‘n ander meisievriendin het nie en hulle twee die dag saamgestap het nie, dit sal absurd wees. Die oorledene kon sekerlik nou nie vir die res van sy lewe nie in ander verhoudings betrokke geraak het net sodat u nie mag geprovokeerd raak daardeur nie. Hy was sekerlik geregtig om met sy lewe normaal voort te gaan wat by baie duidelik gedoen het. Daar was geen sprake van provokasie aan sy kant nie. U het die betrokke dag die konfrontasie ontlok. Toe u die oorledene en sy meisie sien stap in die straat het u hulle genader, uit eie beweging. Hierdie argument begin en toe op ‘n uiters lafhartige en koelbloedige wyse die oorledene met ‘n mes in sy hart doodgesteek.

Uit die omstandighede van die misdaad kan daar beslis nie bevind word dat daar wesenlike en dwingende omstandighede teenwordig is wat die oplegging van ’n mindere vonnis regverdig nie.’

The Regional Magistrate accepted that mitigating factors were that the appellant was relatively young, a first offender, had pleaded guilty and was remorseful for her actions, but was not convinced that these qualified as substantial and compelling circumstances that justified a lesser sentence being imposed. In my view, the Regional Magistrate misdirected himself in this respect.

The only version of what transpired with the stabbing of the deceased was that provided by the appellant in her s 112(2) statement.3 The State did not challenge this version but accepted it as correct. According to the appellant she saw the deceased in the

company of another woman late at night, called out to them and they stopped. She and the deceased then argued and she stabbed him once. The Regional Magistrate concluded from this that the deceased had not provoked the appellant and that she stabbed him out of jealousy.

The accepted facts did not disclose what was said during the argument and the court a quo was not in a position to determine whether there had been provocation or not. But, be that as it may, the observation by the

Regional Magistrate that jealousy had played a role was by no means incorrect and should have been taken into account by him. In failing to do so, he erred.

The Regional Magistrate’s view of what constituted a crime of passion was far too restrictive and as a result he did not accept that the appellant’s emotional state was a mitigating factor. In this regard he misdirected himself. I do not consider it necessary to define in what circumstances a crime is one of passion. Suffice to say that where a person unilaterally terminates an amorous relationship with another, it is prudent to exercise caution and not to adopt a prescriptive approach when determining whether or not the reaction of the rejected party is rational.

It is evident from the appellant’s version that she still loved him and had not accepted that the deceased did not want to continue their relationship. It is not surprising therefore that when she saw the deceased with another woman her inability to reconcile herself to the reality that he was no longer interested led to her seeking to interact with him with fatal consequences. It cannot be discounted that emotional immaturity on her part played a role in what transpired and was a factor that the court a quo, in my view, should have recognised as a mitigating factor.

Ms Crouse, who appeared for the appellant, detailed various factors that the court a quo did not accept as being sufficient to warrant the imposition of a lesser sentence. These were: the appellant was a first offender; twenty two years of age; mother of a three year old child; there had previously been an amorous relationship between her and the deceased and still expressed feelings towards him; encountered the deceased with another woman late at night and during a verbal altercation with the deceased stabbed him once on the spur of the moment.

A further submission by Ms Crouse was that the Regional Magistrate failed to give attention to the issue of rehabilitation and should have found there was an excellent chance of rehabilitation. I agree that the Regional Magistrate erred in failing to take into account the prospect of the appellant being rehabilitated.

Mr Mgenge, who appeared for the respondent, submitted that the offence was premeditated as the appellant had armed herself, followed the deceased and his girlfriend, confronted the deceased and stabbed him. This submission is without merit. The facts presented by Mr Mgenge are at variance with those contained in the appellant’s s 112(2) statement which, as I have already said, the State had accepted. The State cannot now seek to argue that the appellant’s actions were premeditated and the sentence is therefore appropriate. When pressed on this issue Mr Mgenge, to his credit, conceded that the State was bound by the facts as presented by the appellant.

I am in agreement with Ms Crouse that the factors enumerated by her, when considered cumulatively, constitute substantial and compelling circumstances and justified a lesser sentence being imposed.4 I am, in addition, of the view that considering the circumstances relating to the commission of this offence that the prescribed sentence of fifteen years is unjust. This Court may, therefore, interfere and impose a sentence which it considers to be just.

In the result, the appeal against sentence is upheld. The sentence of imprisonment for fifteen years imposed by the court a quo is set aside and a term of imprisonment for ten (10) years is substituted, which is antedated to 16 April 2009.5

_____

JUDGE Y EBRAHIM

17 MARCH 2010

I agree

______

JUDGE I SCHOEMAN 17 MARCH 2010

FATI v THE STATEAP.APJ

1 Criminal Law Amendment Act 105 of 1997

2 S v Kgosimore 1999 (2) SACR 238 (SCA) at para [10].

3 Criminal Procedure Act 51 of 1977

4 See S v Malgas 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA)

5 See fn 3 supra – s 282