S v Kgabo and Others (CC 11/1994) [2005] ZANWHC 63 (13 September 2005)

CC 11/1994

IN THE HIGH COURT OF SOUTH

AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE

STATE APPLICANT

vsRODNEY KGABO ACCUSED NO.1

MEISIE KGOMO ACCUSED NO.2

PETRUS LEGONG ACCUSED NO.3

RECOMMENDATION IN TERMS OF SECTION 1 OF THE CRIMINAL LAW AMENDMENT ACT 105 OF 1997

LANDMAN J:

[1] This recommendation is made in terms of s 1 of the Criminal Law Amendment Act 105 of 1997 and relates to Ms Meisie Kgomo (accused no 2) and Petrus Legong (accused no 3) who were sentenced to death.

[2] The three accused were indicted for murder in that and upon 7th of October 1992 and at or near Ga-Rankuwa in the district of ODI the accused unlawfully and intentionally killed Moshe Moses Kgomo, accused no 2’s husband by stabbing him with knives. They were found guilty by Mr Justice EAT Smith and two assessors. Accused no 1, accused no 2’s brother, was sentenced to 20 years imprisonment. Accused no 2 and 3 were sentenced to death.

[3] On 6 June 1995 the Constitutional Court, in S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC), declared that the statutory provisions providing for the imposition of the death penalty were unconstitutional and invalid.

[4] The Criminal Law Amendment Act 105 of 1997 provides for the process which is intended to lead to the substitution of a sentence of death. All legal procedures have been exhausted by accused numbers (2) and (3) or are no longer at their disposal. The case has been referred to this court as contemplated by s 1(1) of the Act. Mr Justice Smith has retired. The Acting Judge President has assigned the case to me to deal with it in terms of the Act.

[5] I have been furnished with the file, the record and other documentation. I have also been furnished with written heads of argument prepared by Adv K Pillay and Attorney M Hathorn who represent accused no 2. Adv J Henzen, who acts on behalf of accused no 3, has also furnished heads of argument on behalf of his client. I am indebted to them for their useful arguments.

[6] The accused were found guilty on a count of murder. Mr Henzen has submitted that it is appropriate to consider, as a guideline, what sentence would have been appropriate had Criminal Law Amendment Act 105 of 1997 been in place at the date of sentence. I agree that this approach can provide guidance. But as the Act was not applicable I am, of course, not bound to apply it.

[7] The murder would have fallen under Schedule 2, Part 1 of the Act as the murder was committed in the furtherance of a common purpose and the murder was planned and premeditated. The mandatory sentence would have been a sentence of life imprisonment unless there were circumstantial and compelling reasons to deviate from the prescribed sentence.

Accused no 2

[8] Accused no 3’s motive for killing the deceased was a monetary one. Accused no 1’s was found by the trial court to have been influenced by his sister, accused no 2. What was the motive of accused no 2? It is important to establish this because it contributes to the decision regarding an appropriate sentence.

[9] Accused no 2 did not give evidence. Mrs Mkomezulu, a state witness, said that accused no 2 had a child born of a prior relationship to that with the deceased. She further said that accused no 2: “…wanted to go and take this child, or to go and fetch this child where the child was, but she is afraid of her husband”. However under cross-examination it was put to this witness, by accused no 2’s counsel, that her husband knew about this child and it was not a problem.

[10] In his confession, which is not admissible against accused no 2, accused no 3 said:

“There is a certain man Jacob who came for the first time at my place in company of Fergo, and that Fergo had a conversation with Whikie. Thereafter Whikie called me and said to me that Fergo had some task “project” for us. Fergo then told us that his having a sister who is complaining that her husband is ill-treating her, and that the husband must be killed.”

[11] Accused no 2 told the trial court that:

“I have got 4 children and there is no one to look after them, they are alone. The eldest one is at Venda at a boarding school. The last one is 8 years old, the elder to this is 11 years old and the second born is 14 years old. I was asking for suspended Sentence My Lord.”

[12] The bail application shows that accused no 2 was 32 years old at the date of the trial. She was unemployed and lived on the deceased’s pension. The house in which they resided belonged to her.

[13] Accused no 2’s legal representatives have submitted that in advising the President as contemplated in section (1)(3) of the Criminal Law Amendment Act no 105 of 1997 this court should be guided by two factors:

1. the evidence of ill-treatment of accused no 2 by the deceased and that this was the factor which motivated her to kill him.

2. that in recommending an appropriate sentence this court should take cognisance of the need of the children of accused no 2 of parental care.

[14] Accused no 2’s legal representatives have submitted that further evidence can be presented to this court of the motive of accused no 2 in murdering her husband and the context in which she did so and of the current state of her children. Section 1(3) of Act No 105 of 1997 does not expressly provide for the leading of additional evidence other than the evidence lead at the trial.

[15] It was submitted that an alternative sentence of a maximum of 20 years be recommended by the court to the President.

[16] Accused No 2’s legal representative contended that this court, similar to a parole board, should have regard to extenuating factors which may reduce the seriousness of the offence, including those which “on their own could not be used in court as a legal defence.” In cases such as these extenuating circumstances may include: “provocation by the victim by means of mental and/or physical abuse,” “elements of self-defence, for example the victim was armed or had a great physical advantage,” and whether the violence “resulted from unique circumstances which will not easily recur.” lt was submitted that women who kill their partners in the context of spousal abuse may well avail themselves of the specific extenuating factors referred to above and may be able to demonstrate that they “very clearly have committed the first crime that they will every commit”.

[17] I was also referred to the phenomenon of domestic violence and how it has come into focus in South Africa as a result of s 9 of the Constitution of the Republic of South Africa of 1996, as reflected in the passage into law of the Prevention of Family Violence Act 133 of 1993 and its successor the Domestic Violence Act 116 of 1998. It was referred to the judgment of the Supreme Court of Appeal in the matter of S v Ferreira and others 2004 (2) SACR 454 (SCA). In this judgment the court dealt with the question of the appropriate sentence for woman who had killed her partner in the context of an abusive relationship. In S v Ferreira and others Howie P observes at 467 - 468:

“Her decision to kill and to hire others for that purpose is explained by the expert witnesses as fully in keeping with what experience and research has shown that abused women do. It is something which has to be judicially evaluated not from a male perspective or an objective perspective but by the court’s placing itself as far as it can in the position of the woman concerned, with a fully detailed account of the abusive relationship and the assistance of expert evidence such as that given here. Only by judging the case on that basis can the offender’s equality right under s 9 (1) of the Constitution be given proper effect. It means treating an abused woman accused with due regard for gender difference in order to achieve equality of judicial treatment. Sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the self-determination of South African women. It also, therefore, means having regard to an abused woman accused’s constitutional rights to dignity, freedom from violence and bodily integrity that the abuser has infringed.”

[18] See also S v Engelbrecht 2005 (2) SACR 41 (W) (judgment in respect of conviction) and S v Engelbrecht 2005 2 SACR 163 (W) (judgment in respect of sentence); S v Potgieter 1994 (1) SACR 61 (A) and S v Ingram 1995 (1) SACR 1 (A).

[19] I am of the opinion that it cannot be said for certain that the deceased was abusing or ill-treating accused no 2. However there are sufficient indications that her motive for murder stems from the matrimonial relationship which induced her to take the life of her husband. Although I would be reluctant to hold on the evidence, in notionally applying the minimum sentence legislation, that substantial and compelling circumstances exist for imposing a lesser sentence than life imprisonment, nevertheless I am of the view that the death sentence should be substituted with a sentence of 25 years imprisonment. The considerations relevant to accused 2’s children are a factor which I take into account in arriving at this recommendation.

Accused no 3

[20] Mr Henzen submitted, as regards accused no 3, that there are no circumstantial and compelling circumstances to deviate from the prescribed sentence having regard to S v Malgas 2001 (2) SA 1222 (SCA). Accused no 3 was hired by accused numbers 1 and 2 to assassinate the deceased for an amount of R2000. He did not give evidence at his trial.

[21] He was, according to the indictment, 34 years old in 1993. According to his bail application he was a cook employed by the South African Defence force at Wahlmansstad. He is married and has 2 children.

[22] I am of the opinion that no substantial and compelling circumstances would have been found to exist in his case. I have also considered what sentence would have been appropriate had I not resorted to the notional application of the minimum sentence legislation as a guideline. I have come to the conclusion that life imprisonment would be the only appropriate sentence.

Conclusion

[23] I accordingly advise the Honourable President -

(1) as regards Ms Meisie Kgomo (accused no 2) that:

(a) The death sentence needs to be set aside;

(b) that a sentence of 25 years imprisonment should be substituted in place of the death sentence; and

(c) that the sentence of 25 years imprisonment should be antedated to 9 September 1994 (the date on which the death sentence was imposed).

(2) as regards Mr Petrus Legong (accused no 3) that:

(b) that life imprisonment should be substituted in place of the death sentence; and

(c) that the sentence of life imprisonment should be antedated to 9 September 1994 (the date on which the death sentence was imposed).

SIGNED AND DATED AT MMABATHO THIS 13TH DAY OF SEPTEMBER 2005.

______

A A LANDMAN

JUDGE OF THE HIGH

COURT